IMPORTANT POINT
The trustworthiness of the victim's testimony, corroborating evidence, and statutory presumptions under the POCSO Act are crucial in establishing guilt beyond reasonable doubt in cases of sexual offences against children.

JUDGMENT

CRL.A. 73/2022

1. The present appeal has been filed seeking setting aside the judgement dated 30th June, 2021 and the order of sentence dated 26th October, 2021 passed by the learned Additional Sessions Judge(FTSC)(POCSO), South District, Saket Courts, New Delhi, whereby the appellant was convicted for the offences punishable under sections Section 363 of the Indian Penal Code, 1860 (IPC) and Section 4 of the Protection Of Children from Sexual Offences Act, 2012 (POCSO).

2. The appellant was sentenced to rigorous imprisonment for a period of twelve years for the conviction under Section 4 of the POCSO Act and to pay a fine of Rs. 15,000/- and seven years rigorous imprisonment under Section 363 of the IPC and to pay a fine of Rs. 10000/-.

3. The brief facts of the case as set up by the prosecution are as follows:

3.1. On 6th November, 2014 at about 7:00 pm, the appellant took the minor victim (PW-1) to a deserted street at Prakash Mohalla, East of Kailash. Thereafter, the appellant closed the mouth of the victim with some cloth as a result of which the minor victim became unconscious. When the victim regained consciousness, he found blood on his pants and found the pants removed. His thighs were also aching. Thereafter, some unknown person dropped the victim at his house.

3.2. The victim narrated the aforesaid incident to his elder brother (PW-4). The victim informed his brother that the appellant had taken him away using a knife and had made the victim smell something due to which he lost his consciousness.

3.3. The victim's brother took him to the Amar Colony Police Station. The victim was then taken to the All India Institute of Medical Sciences (AIIMS) for medical examination by the police and his brother, where his MLC (Ex. PW-2/A) was prepared by the concerned doctor. The statement of the victim under Section 161 of the Code of Criminal Procedure, 1973(CrPC), dated 7th November, 2014, was recorded at the hospital itself. The statement of the brother of the victim (PW-4) under section 161 CrPC was recorded on 7th November, 2014 as well.

3.4. Thereafter the police registered FIR no. 974/2014 under sections 363/328/377 of the IPC and Section 6 of the POCSO.

3.5. The appellant was arrested on 7th November, 2014.

3.6. The victim's statement under section 164 Section of the CrPC was recorded on 11th November and subsequently, the charge-sheet was filed on 2nd January, 2015.

4. The sessions court after examining the witnesses, analysing the evidence and hearing the arguments convicted the appellant for the offences under section 363 of the IPC and Section 4 of POCSO.

5. The counsel appearing for the appellant has made the following submissions:

i. As per the prosecution, the victim had pointed out one `green colour cloth' (EX. 6) with which he wiped off his blood which was seized by the police. The said cloth has not been mentioned by the victim in his statements under Sections 161 and 164 of the CrPC. Further, there is no mention of the aforementioned cloth in the statement under Section 161 of the CrPC by the brother of the victim as well.

ii. There are material contradictions in the testimonies of the victim and his brother on one hand, and the testimonies of the Head Constable (PW-5) and Investigating Officer (PW-7) on the other. PW-5 has stated that post medical examination, at the "instance" of the victim, the victim and his brother were brought back to the spot of the incident, where the victim identified the green colour cloth (Ex.6) and the said cloth was seized. The same version is supported by the testimony of PW-7. However, the victim and his brother in their testimonies before the learned trial court have stated that post medical examination they were brought back to the police station from where the victim was sent home directly. Hence, it is submitted that the said green colour cloth (Ex.6) was planted by the Investigating Officer (IO) and the story of the seizure of the cloth, post-medical examination, is an after-th