The significance of scientific evidence, including DNA matching, in establishing guilt under the POCSO Act.

ORDER

Mini Pushkarna, J. (Oral). - CRL.M.A. 9812/2022 (Exemption)

1. Exemption allowed subject to just exceptions.

2. Application is disposed of.

CRL.A. 114/2020

1. The present is an appeal under Section 374(2) read with Section 383 of Cr.P.C. challenging the Judgment dated 28th November, 2019 and order on point of sentence dated 29th November, 2019 passed by Sh. Gaurav Rao, learned Additional Sessions Judge-01 (POCSO), South-East District, Saket Courts, New Delhi.

2. The appellant was convicted for the offence punishable under Section 6 of The Protection of Children from Sexual Offences Act, 2012 (herein referred to as 'POCSO Act'), and awarded sentence of Imprisonment for life along with fine of Rs.10,000/- ; in default of payment of fine, the Trial Court has further awarded sentence of Simple Imprisonment for a period of one month, for the said offence.

3. In the present appeal the main challenge to the impugned judgment of the learned Trial Court is on the ground that the prosecution has not been successful in establishing the guilt of the appellant in respect of offence punishable under Section 6 of the POCSO Act. Learned counsel for the appellant has contended that the testimony of the prosecution witnesses did not inspire any confidence and no conviction or sentence can possibly be awarded on the basis of such evidence. She further argued that the witnesses, PW1 i.e. the mother of the victim, and PW3 i.e. father of the victim, had not supported the case of the prosecution and have deposed in favour of the appellant. Learned counsel for the appellant referred to the crossexamination dated 3rd May, 2016 of PW1 and cross-examination of PW3 to contend that the said witnesses who were the parents of the victim had turned hostile and had rather deposed in favour of the appellant. Further, even the victim was not examined, which was fatal to the prosecution case.

4. Learned counsel for the appellant further challenged the sentence awarded to the appellant vide order dated 29th November, 2019 passed by the learned Trial Court and prayed for leniency by reducing the sentence awarded to the appellant. For this purpose, she relied upon three judgments viz. T.K.Gopal vs. State of Karnataka, AIR 2000 SC 1669; Nawabuddin vs. State of Uttrakhand, 2022 (3) SCALE 16; Ramher vs. State (Govt. of NCT) of Delhi, 2014 (140) DRJ 344 (DB). It is submitted that there were mitigating circumstances in favour of the appellant for considering his case for reduction of sentence. She argued that the appellant had clean antecedents; was 35 years of age at the time of offence; he was married and his wife and six children were dependent on him, the appellant being the sole bread earner. She further argued that the jail conduct of the appellant was satisfactory and on path of the reformation. Thus, she prayed for reduction in the sentence awarded to the appellant.

5. Allegations against the appellant are that he committed aggravated penetrative sexual assault upon baby 'M' on 14th March, 2014, at about 10.00 PM at a house in Badarpur, New Delhi. Vide order dated 11th July, 2014, charge for offence punishable under Section 6 of the POCSO Act was framed against the accused Mukish, appellant herein. In all 15 witnesses were examined by the prosecution.

6. As per the deposition of PW1, mother of the victim, she along with her husband and two children, including her daughter, aged about four years, resided at the given address. On the day of the incident, they all had gone to sleep after taking dinner. At that time, her daughter 'M' was also sleeping with her. However, in the night Mukish had taken her daughter to sleep with him. At around 10.00 PM, she heard the cries of her daughter. She asked Mukish to send her daughter to her but he did not send her daughter to her. They got suspicious whereupon her husband had removed the blanket above the accused and they found that Mukish had removed the pant and nicker of her daughter and had also removed his pant and nicker. T