The main legal point established in the judgment is the application of Section 354 IPC and Section 10 POCSO Act to convict the appellant for sexually assaulting a minor.

JUDGMENT

1. Vide this appeal under Section 374 Cr.P.C, the appellant is assailing the judgment dated 13.01.2021 (`impugned judgment' in short) passed by Ld. Special Judge (POCSO Act)/ASJ-05 (Central), Tis Hazari Courts, Delhi, whereby the appellant was convicted for the offences punishable under Section 354 IPC and Sec. 10 of The Protection of Children from Sexual Offences Act, 2012 (`POCSO Act' in short), in Sessions Case No. 29030/2016, in case FIR no. 485/2016, Police Station Burari, u/Ss. 354 IPC & 8/10 POCSO Act; and order on sentence dated 06.10.2021, whereby the appellant was sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 354 IPC and to undergo rigorous imprisonment for a period of six years for the offence punishable under Section 10 of POCSO Act and to pay a fine of Rs.15,000/- and in default to undergo simple imprisonment for four months; and both the sentences shall run concurrently.

2. Criminal Justice System was set into motion on receipt of a telephonic information at 11:07 pm on 28.09.2016, at PP Jharoda, PS Burari, Delhi about quarrel at the house (address withheld to protect the identity of the victim) which was reduced into writing vide DD 34 PP/ Ex.PW10/A. The same was marked to SI Rambir for inquiry, who proceeded to the spot with PW-11 Constable Janendra Kumar. Soon thereafter, at about 11:15 pm another information regarding rape of girl child aged about 4 to 5 years at a place (address withheld) and the accused having been nabbed, was received, which was recorded vide DD no. 35 PP/Ex.PW10/B; and information of the said DD was also telephonically given to SI Rambir for necessary action and in-charge police post was also informed in that regard. Accordingly, W/SI Alma Minz/PW-12 (Investigation Officer) was directed to proceed to the spot for necessary action. On reaching the spot, the victim `N. and her mother `G. (names of the victim and mother are withheld to protect their identity) were found present. On inquiry, the mother of the victim did not give her statement in absence of her husband. The next day, i.e., on 29.09.2016, the mother of the victim visited police post along with her husband and the victim girl and gave her statement/complaint (PW 2/A) to PW-12 W/SI Alma Minz. On which, PW-12 W/SI Alma Minz prepared rukka/Ex.PW12/A and handed over the same to PW-11 Constable Janendra Kumar for registration of FIR. PW-11 after getting the FIR registered, handed over the same to the PW-12 for investigation. In her complaint/Ex.PW2/A, mother of the victim/PW-2 stated that her daughter (victim) aged about six years, who was studying in UKG used to go to the appellant's house in the evening at about 3 pm for learning Kayda. On previous day i.e., 28.09.2016, when her daughter returned after attending Kayda class, she informed PW-2 that as she could not recite Kayda, Hafiz Ji, whose name she came to know as Mohd. Abid Hussain i.e. the appellant/accused, did gulguli, pointing towards her private parts in front and at the back. She further stated that her jeth/brother-in-law `SM./PW-7 on coming to know about the same called number 100. She also stated that since her husband was not at home at that time, she did not give statement to the police.

2.1. It is also the case of the prosecution that thereafter, the victim was counseled and was got medically examined at Aruna Asaf Ali Hospital by PW-6 Dr. Vaibhav Chaudhary vide MLC Ex. PW2/B. Thereafter, the complainant/PW-2 and the victim PW-3 were taken to the spot and site plan Ex. PW12/B was prepared at their instance. The appellant/accused Mohd. Abid Hussain was apprehended vide arrest memo Ex. PW2/D. His disclosure Ex. PW11/B was recorded. Thereafter on 01.10.2016, Investigation Officer PW-12 produced the victim before the Learned Magistrate and got her statement under Section 164 Cr.P.C recorded. The victim in her said statement stated that ----gkfQt us eq>s xqyh xqyh djk FkkA eSaus eEeh dks crk fn;kA eEeh us i