The main legal point established in the judgment is the requirement for the prosecution to prove the age of the victim in cases under the POCSO Act, and the reliance on credible evidence such as school records and medical evidence.

JUDGMENT

Mukta Gupta, J. - By the present appeal, the appellant challenges the judgement dated 26th August, 2019 whereby the appellant was convicted for offences punishable under Sections 354/354A/323 IPC read with Section 10 of the Protection of Children from Sexual Offences Act (in short POCSO Act) and the order on sentence dated 30th August, 2019 whereby the appellant was directed to undergo rigorous imprisonment for a period of five years and a fine of Rs. 5,000/- for offences punishable under Section 10,POCSO Act and rigorous imprisonment for a period of one year for offences punishable under Section 354 IPC and Section 354A IPC and rigorous imprisonment for a period of six months for offence punishable under Section 323 IPC and all the sentences were directed to run concurrently.

2. Learned counsel for the appellant contends that the conviction of the appellant for offence punishable under Section 10 POCSO Act is not warranted and illegal for the reason the age of the prosecutrix has not been proved and in the absence of proof of age it cannot be held that the prosecutrix was a minor, thus one of the necessary ingredients of the offence punishable under Section 10 POCSO Act is missing. She further states that the appellant was the foster father of the prosecutrix and was interested in her well being. Even as per the prosecutrix, the appellant did not like her coming late from the school and going along with the boys. Thus the appellant was only disciplining her due to which she got annoyed and lodged the FIR in question. Conviction of the appellant is based on the sole testimony of the prosecutrix. The mother and the younger sister of the prosecutrix are not eye witnesses and their evidence is required to be discarded being hearsay. Since the offence under Section 10 POCSO Act is not made out and the unexpired portion of the appellants sentence is now nearly three months only, the appellant be released on the period undergone in case this Court, on merits, finds that a case to uphold the conviction under Section 354/354A/323 IPC is made out.

3. Learned APP for the State countering the arguments of learned counsel for the appellant states that the age of the prosecutrix has been duly proved by the prosecution from school record vide Ex.PW-10A which shows that the prosecutrix was born on 20th January, 2002 and thus on the date of incident, that is, 23rd September, 2016 she was a minor. Soon after the incident, the prosecutrix made a PCR call and was medically examined which shows injury marks on her. After the alleged incident, the appellant was involved in one more case on which FIR No.970/2017 under Section 509 IPC and Section 12 POCSO Act was registered at PS Samaipur Badli on the complaint of prosecutrix which offence was allegedly committed when the appellant was released on bail during the trial in the above noted case.

4. Case of the prosecution is based on the testimony of the prosecutrix (PW-1) who stated that she was a student of 10th standard, she had a brother aged 12 years and a sister aged 11 years. Her father was an alcoholic and on 23rd September, 2016 at about 1.00 PM when she came back from the school and her mother was not at home, her father was present at home in heavily drunken condition. He asked the prosecutrix as to why she had come late from the school on which she replied that she was not late and had come directly to the house after her examination. On this the appellant pulled her inside the house, started abusing her, grabbed her from behind and groped her breast. He closed the door and mercilessly assaulted her. She cried in immense pain. In the meantime, her younger sister came and knocked the door. When the appellant opened the door she went out and called the police. Her statement was recorded on the same day vide Ex.PW-1/A and she was medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. also wherein she reiterated her allegations which statement was exhibite