The prosecution must establish foundational facts, including penetration, to prove the offence of aggravated penetrative sexual assault under the POCSO Act.

JUDGMENT

Jasmeet Singh, J. - This is a petition filed seeking setting aside of the impugned judgment dated 24.09.2019 and order on sentence dated 10.10.2019 passed by ASJ-07, Special Court, POCSO Act, South East District, Saket Courts, Delhi in FIR No. 106/2014, P.S. Hazarat Nizamuddin u/s 6 POCSO Act, case titled 'State Vs. Mohd. Azizul' wherein the Applicant has been found guilty under Section 6 of the POCSO Act and was sentenced to R.I. for 14 years and fine of Rs. 10000. In addition, since the fine was not paid, he was further directed to undergo simple imprisonment of 6 months.

2. The brief factual matrix is as under:

2.1 As per the prosecution victim baby 'R' used to reside along with her family at Jhuggi No. 114, Nizam Nagar Basti, Hazrat Nizammudin, New Delhi. She has 3 siblings and her parents were running a tea shop from a place near their Jhuggi. The accused was a vagabond who used to sleep on the pavements near the tea shop.

2.2 On 13.03.2014, around lunch time, the mother and the father were attending to their tea shop and the victim was playing in the park behind the shop. Around 1.30pm on the same date, the mother of the victim left the tea shop for buying food for her children from a nearby hotel while her husband was minding the shop. It is then alleged by the prosecution that the victim remained unsupervised at the park and taking advantage of the same, the accused appellant committed penetrative sexual assault upon her. After being subjected to penetrative sexual assault, the victim came weeping at the tea shop with two 10 rupee notes in her hand.

2.3 On noticing this, the father made inquiries from the victim and she pointed towards the accused who was seen sleeping near the shop. The victim disclosed that the accused had 'beaten' her and given her the currency notes. The father of the victim observed that the underwear of his daughter was wet and he could make out that she had been sexually assaulted. He confronted the accused and started beating him.

2.4 In the meantime, the mother returned from the hotel and on seeing her husband beating the accused, she made inquiries from her husband and came to know about the alleged incident. The mother took her daughter in her lap and her daughter pointed towards the accused and disclosed that he had removed her underwear and also had beaten her. She observed that the underwear of her daughter was completely wet with semen and her clothes were sticky and dirty. She observed redness on the vagina of the victim. On finding that their daughter had been sexually assaulted by the accused, the parents went to the police station and reported the matter.

2.5 The police collected the evidence and subsequently the same was sent for analysis and preparation of FSL report.

3. After analysing the documents, evidence and arguments of the parties, the Sessions Court was of the view that on 13.03.2014, between 01:00 PM and 02:00 PM, accused i.e. the appellant committed penetrative sexual assault upon the victim by inserting his penis in her vagina. The victim was less than 12 years of age at the time of offence and therefore, the penetrative sexual assault falls under the category of aggravated penetrative sexual assault as defined under Section 5(m) of the POCSO Act.

4. The learned Sessions Court further on the basis of the findings sentenced the appellant to undergo rigorous imprisonment for a period of 14 years and fine of Rs. 10,000/- for committing the offences u/s 6 of the POCSO Act.

5. It is this judgment dated 24.09.2019 which has been challenged by the appellant before me.

6. It is submitted by Mr. Verma, learned counsel for the appellant that the present case is devoid of the testimony of the prosecutrix/victim as the victim has neither been interrogated nor examined by the prosecution.

6.1 He submits that the prosecution solely relies upon the testimony of the parents of the victim PW-2 and PW-3 who are not ocular witnesses but have deposed regarding their impression of the alleged