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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anu Malhotra, J.
Mohd. Tabsir - Appellant
Versus
State NCT Of Delhi - Respondent
Criminal Appeal No. 270 of 2021, Criminal Miscellaneous (Bail) No. 1162 of 2021
Decided On : 01-02-2022
POCSO - Appeal against conviction under Section 354 of IPC and Section 10 of POCSO act, 2012 - Indian Penal Code, 1860, Section 354; POCSO act, 2012, Section 10
Fact of the Case:
The appellant appealed against the judgment and order on sentence convicting him under Section 354 of the Indian Penal Code, 1860 and Section 10 of the POCSO act, 2012. The case involved the appellant being accused of molesting a minor and was sentenced to six years of rigorous imprisonment and a fine of Rs.20,000.
Finding of the Court:
The court found the appellant guilty based on the testimonies of the victim, her mother, and father, and held that the appellant's defense of being falsely implicated was not credible. The court also noted the absence of any injury on the victim and the lack of other eyewitnesses as not detracting from the prosecution's case.
Issues: The issues included the credibility of the testimonies, the defense of false implication, and the absence of other eyewitnesses.
Ratio Decidendi: The court relied on the consistent and credible testimonies of the victim and her parents, the lack of injury on the victim, and the implausibility of the appellant's defense to establish guilt beyond a reasonable doubt.
Final Decision: The appellant's conviction under Section 354 of IPC and Section 10 of POCSO act, 2012 was upheld, and the sentence was reduced to five years of rigorous imprisonment with a fine of Rs.20,000, in default of which 30 days of rigorous imprisonment.
JUDGMENT
anu Malhotra, J. - The appellant vide the present appeal assails the impugned judgment dated 28.2.2020 and the impugned order on sentence dated 11.3.2020 of the Court of the learned additional Sessions Judge-05, POCSO, Saket Court in FIR no. 527/2013 PS Mehrauli, whereby the appellant has been held guilty and has been convicted under Section 354 of the Indian Penal Code, 1860 and Section 10 of the POCSO act, 2012 and has been sentenced to undergo rigorous imprisonment for a period of six years for commission of the offence punishable under Section 10 of the POCSO act,2012 and a fine of Rs.20,000/- and in default to undergo rigorous imprisonment for a period of 30 days submitting inter alia to the effect that he has been falsely implicated in the case.
2. along with the appeal was Crl.M.B.No. 1162/2021 filed by the appellant seeking suspension of sentence during the pendency of the appeal. Vide order dated 16.9.2021, it being the first appeal, the same was admitted for hearing. The Trial Court Record was directed to be requisitioned in the e-form and the physical form and the Trial Court Record has since been received. Vide order dated 16.9.2021, notice of the appeal was also directed to be issued to the prosecutrix through the Investigating Officer to be represented either herself or through her authorized representative, on taking of steps by the appellant.
3. Vide order dated 10.11.2021 it is indicated that the Investigating Officer SI Prem Kumar joined the proceedings through Video Conferencing and submitted that the prosecutrix had not joined the proceedings as her mother had informed that she wanted the prosecutrix to be married and they did not intend to pursue the matter any further nor qua the aspect as to whether there was any further sentencing or not.
4. Vide order 10.11.2021, it was considered appropriate that in view of the spirit of the POCSO act, 2012, the appeal be heard expeditiously and production warrants were thus issued to the Superintendent Jail, Delhi for production of the appellant, who was produced for the hearing on 17.1.2022 through video conferencing. The Nominal Roll of the appellant has been received from the Superintendent, Central Jail No.7, Tihar, New Delhi dated 1.12.2021 which indicates that the appellant as on 1.12.2021 had undergone 2 years 1 month and 12 days of incarceration with a remission of 5 months and 18 days having been earned by the appellant with the unexpired portion of the sentence being 3 years 5 months in the event of the fine being paid. The appellant is indicated to be working as a welding panja sahayak at the jail with his conduct at the jail being satisfactory with no punishment recorded.
5. Submissions were addressed on behalf of appellant by learned counsel for the appellant and on behalf of the State by the learned aPP for State.
6. The FIR in the instant case is indicated to have been registered on 05.08.2013 at Police Station Mehrauli under Section 8 of the POCSO act, 2012 on the complaint of Smt. 'G' the mother of the victim 'a' then aged 9 years with the FIR having been registered at 5:50 a.m. on 05.08.2013 in relation to the incident of the date 05.08.2013 which is stated to have taken place at 3:30 a.m. onwards.
7. The complainant Smt. 'G' through the FIR stated that she and her husband 'U' worked as laborers and they have three daughters and a son and about six months before her family had come to Delhi in search of work and her husband 'U' used to work with one 'J'at Mangla Puri and that they had no regular place of abode and were living underneath the pillar No. 29 near Chattarpur Metro Station and that day i.e., 05.08.2013 she was sleeping with her children and her husband and at about 3:30 a.m., she heard the sound of her middle daughter 'a' aged 9 years crying and when she woke up she saw that the panty of her daughter 'a' was open till her knees and at that time she also saw that a boy was running away from there and at that time her daughter 'a' ha
The main legal point established is the reliance on consistent and credible testimonies to establish guilt beyond a reasonable doubt.
The reliability of a child witness's testimony and the rule of prudence in accepting such evidence if found to be truthful.
The victim's testimony in a sexual assault case stands at a higher pedestal than injured witness and needs no corroboration.
A judgment must explicitly formulate points for determination and provide a reasoned analysis of all evidence, including defense testimony. Failure to address the defense case, provide a logical narr....
The court upheld the conviction based on the victim's credible testimony and medical evidence, affirming that under the POCSO Act, the burden shifts to the accused to rebut presumption of guilt.
The central legal point established in the judgment is the interpretation and application of the definition of 'Aggravated Sexual Assault' under the POCSO Act, based on the evidence and legal provisi....
A conviction under the POCSO Act cannot stand if the victim's testimony contains significant inconsistencies regarding material facts, undermining the credibility of the prosecution's case.
Minor penetration constitutes sexual assault under the POCSO Act, validating the conviction; the court modified the sentence in consideration of prior incarceration.
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