The main legal point established in the judgment is the reliance on the consistent version of the prosecutrix in reaching the decision to convict the appellant under Section 6 of the POCSO Act.

JUDGMENT

Mukta Gupta, J. - By the present appeal, appellant challenges the judgment dated 5th September, 2020 convicting the appellant for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) as also the order on sentence dated 1st October, 2021 awarding him sentence of rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/- (Rupees ten thousand only), in default whereof to undergo simple imprisonment for a period of one month and to pay a compensation of Rs. 25,000/- (Rupees twenty five thousand only) to the victim and in default whereof to undergo simple imprisonment for a period of two months.

2. Learned counsel for the appellant contends that as per the statement of the prosecutrix recorded under Section 164 Cr.P.C. no penetrative sexual assault took place and the statement made by her in the Court was an improvement. The child being of tender age could not contemplate the distinction between a penetrative sexual assault and touch. On a perusal of her statements, the appellant cannot be convicted for offence punishable under Section 6 POCSO Act. Appellant has also taken the plea of false implication which was not considered by the learned Trial Court. Further the version of the minor victim is also not corroborated by the MLC. Even if the statement of the prosecutrix is to be believed in totality at best an offence defined under Section 9 punishable under Section 10 of POCSO Act is made out for which the minimum sentence prescribed is five years which may extend to seven years. The appellant has now been in custody for more than five years imprisonment with no interim bail in between and hence he be released on the period already undergone. The appellant is a young boy aged 19 years. Conduct of the appellant in the jail is satisfactory and he has no criminal antecedents.

3. FIR No.362/2016 was registered at PS Nangloi, Delhi for offence punishable under Section 376 IPC and Section 6 of POCSO Act on the statement of the minor victim aged five years who stated that her parents were residing as tenants and she was studying in the school. Her mother works at home whereas her father runs a barber shop. The appellant resided in the adjoining room. One day when it was Sunday, she was playing in his room. Mother of the appellant was outside the room. The appellant ejaculated on her clothes thereafter he took off her underwear and put his organ into from where she urinates due to which she had pain. When she said that she had to go home appellant stated that she should not tell this to anybody. Thereafter, one day she did not know that the appellant was alone in his room when he again took off her underwear and ejaculated inside her underwear. He put on her underwear and she came back to her room. She did not tell her mother as she felt that her mother would beat her. On that date her brother stated that lets go to the house of the appellant for studying on which she stated to her brother that she would not go to the appellant as he does wrong acts. Her mother was in the kitchen who heard her say so. Thereafter, her mother asked her what was the wrong act done by the appellant, on which she told her mother everything. Thereafter her father called the police. MLC of the prosecutrix was conducted on the same date wherein she stated that the appellant removed her underwear and put his penis into her underwear and ejaculated on her chest twice one week back. He also threatened not to tell anyone. Because the MLC notes no vaginal, oral or anal intercourse, learned counsel for the appellant contends that no case for offence punishable under Section 6 POCSO Act is made out.

4. Statement of the victim was recorded under Section 164 Cr.P.C. on 7th August, 2016 wherein she stated that appellant resided in the adjoining room. He took off her underwear, pressed her, told her not to tell her mother and that she should say that he was getting her cursive writin