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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anish Dayal, Mukta Gupta, JJ.
Puran - Appellant
Vs.
State - Respondent
Crl. A. 352 of 2021
Decided On : 13-07-2022
POCSO Act - Conviction under Section 6 - [FACT OF THE CASE] The appellant challenged his conviction under Section 6 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and the order dated 8th June, 2021, sentencing him to undergo life imprisonment for a period not less than 14 years. The appellant forcibly entered the house of the child victim and committed the offence of penetrative sexual assault. [FINDING OF THE COURT] The court found the appellant guilty of penetrative sexual assault based on the victim's testimony, circumstantial evidence, and scientific reports. [ISSUES] The issues included the appellant's alibi, evidence of the victim's clothes, and the applicability of different provisions of the POCSO Act. [RATIO DECIDENDI] The court concluded that the appellant was in a position of trust and authority over the child victim, leading to his conviction under Section 6 of the POCSO Act. [FINAL DECISION] The appeal was dismissed, and the sentence of life imprisonment not less than 14 years was upheld.
JUDGMENT :
1. By way of the instant appeal under Section 374(2) Cr.P.C., the appellant has challenged his conviction under Section 6 of Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and the order dated 8th June, 2021 whereby he has been sentenced to undergo life imprisonment for a period not less than 14 years. In addition, compensation of Rs. 4,50,000/- was granted to the victim in accordance with Delhi Victim Compensation Scheme.
2. The judgment under challenge was passed by learned Additional Sessions Judge (ASJ-05) POCSO South West District, Dwarka Courts, New Delhi on 12th March, 2020, in S.C. Case No. 440384/16, pertaining to FIR No. 237/14, P.S. Kapashera registered under Section 6 of the POCSO Act and the order of sentence was passed on 8th June, 2021.
3. The facts in brief are that in the night of 25th May, 2014, the appellant forcibly entered the house of the child victim, allegedly aged about 10 years, and committed the offence of penetrative sexual assault punishable under section 6 of the POCSO Act. Accordingly, above noted FIR was registered at PS Kapasehra on 31st May, 2014. Pursuant to the investigation, charge-sheet was filed against the appellant for commission of offence under section 376 IPC and section 4 (6) of POCSO Act. Charge was however, framed against the appellant for offence punishable under section 6 of POCSO Act. Appellant pleaded not guilty and claimed trial. During trial, the prosecution examined 14 witnesses. The accused was examined under Section 313 Cr.P.C. when he pleaded innocence and stated he wished to lead defence evidence. Accordingly, the accused examined himself as DW-1 and 2 more witnesses from his employer company as DW-2 and DW-3.
Submissions by the appellant:
4. To substantiate his case, the appellant through the counsel and the memo of appeal inter alia submitted as follows:
(ii) The child victim PW-1 knew appellant Puran prior to the incident as he had stayed as a tenant in their house earlier.
(iii) The child victim was living on the second floor of the building along with her family and there were six more tenants in the same building and her bhabhi and brother used to come daily to inquire about their well being.
(iv) The DD entry No. 16A dated 31st May, 2014 recorded at 2:40 PM pursuant to PCR call pertains to the incident of eve-teasing (“ched-chad”). This information was supplied by the father of the victim to the PCR from his phone.
(v) Around 9:00 PM on the same day MLC of the victim child was conducted as per which there were no sign of injury pursuant to which detailed examination of the victim child was conducted.
(vi) At the date of incident, the appellant was at his working place as viz. IGI Airport (APM Air Cargo) where he was working as a porter and attendance record has proved his physical presence at the work place.
(vii) The child victim had been taken to a local doctor on 25th May 2014 by the neighbor and there the victim’s version was in respect of pain in the stomach and not sexual assault.
(viii) As per the statement of PW-1, the clothes worn by her on the day of the incident were washed by her and hence, matching done by the FSL would not be probative.
(ix) As per the report of Safdarjung Hospital, the radiological bone age as per the ossification report of the child victim was declared as between 12-14 years. Therefore, considering the error margin of 2 years with benefit of doubt to the accused, the age of victim child be taken as 12 years on the lower side and 16 on the higher side and therefore, the offence as under Section 5 (m) of POCSO Act (which mandates penetrative sexual assault on a child below 12 years as aggravated penetrative sexual assault) is made out. Consequently, the appellant ca
The appellant's position of trust and authority over the child victim led to his conviction under Section 6 of the POCSO Act.
The reliability of the prosecutrix's testimony and the admissibility of res gestae evidence were central to the court's decision.
The court held that insufficient evidence for penetrative assault warrants acquittal under specific POCSO sections, yet convicted the appellant for lesser sexual assault under Section 9(n).
The absence of penetration is critical for a conviction under Sections 5(i) and 6 of the POCSO Act, but the presence of injuries can still lead to a conviction for aggravated sexual assault under Sec....
The judgment established the distinction between rape and sexual assault, emphasizing the requirement of penetration for the former, and the physical contact without penetration for the latter under ....
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