IMPORTANT POINT
The reliability of the prosecutrix's testimony and the admissibility of res gestae evidence were central to the court's decision.

JUDGMENT

1. The present appeal has been filed for setting aside the judgment of conviction dated 28th January, 2021 and the order on sentence dated 27th August, 2021, passed by the learned Additional Sessions Judge (POCSO), South District, Saket Courts, New Delhi.

2. Vide judgment of conviction, the appellant was convicted for the offences punishable under Section 376(2)(i) of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Vide order on sentence, the appellant was sentenced to rigorous imprisonment for a period of twenty years for the conviction under Section 6 of the POCSO Act and to pay a fine of Rs.15,000/-. No sentence was awarded to the appellant under Section 376 of the IPC in view of Section 42 of the POCSO Act.

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

I. On 9th September, 2014, a PCR call was received by the police from the father of the child victim, regarding sexual assault on his daughter, who was aged four and a half years at the time of incident. Information was recorded and the police proceeded to meet the child victim.

II. The police made inquiry with the child victim and she was taken to the All India Institute for Medical Sciences (AIIMS) Hospital, where her medical examination was conducted and the MLC was prepared.

III. Statement of the mother of the child victim/complainant was recorded on 9th September, 2014, who stated that her daughter was taking tuitions from her neighbour, Archana. On 8th September, her daughter went for tuitions, but returned early. On enquiring why she came early, the child victim stated that the appellant, who is the brother in law of the tuition teacher, removed her underwear and inserted his finger in her private parts. Archana entered the room, and seeing the incident, she beat up the appellant.

IV. After hearing about the incident, the mother of the child victim went to the house of the appellant and confronted Archana, who confirmed the incident committed by the appellant.

V. Based on the statement of the mother of the child victim, FIR No.486/2014 under Section 376 of the IPC and Section 6 of the POCSO Act was registered at Police Station Fatehpur Beri on 9th September, 2014.

VI. The appellant was arrested on 9th September, 2014 and subsequently, after investigation, the chargesheet was filed.

4. During trial, eleven witnesses were examined by the prosecution, including the child victim (PW-1), mother of the child victim (PW-3), the tuition teacher (PW-6). Statement of the appellant denying the evidence and claiming innocence was recorded under Section 313 of the Code of Criminal Procedure, 1973 (CrPC). Two witnesses were examined by the defence, being the neighbour of the appellant (DW-1) and the mother of the appellant (DW-2).

5. The Sessions Court after examining the witnesses, analysing the evidence and hearing the arguments convicted the appellant for the offence under Section 376 of the IPC and Section 6 of the POCSO Act.

6. Counsel appearing on behalf of the appellant has made the following submissions:

I. The entire case of the prosecution rests on the statement of child victim (PW-1). The Trial Court did not appreciate the fact that the PW-1 was a child and her statements should have been thoroughly scrutinized and corroborated.

II. Archana, sister-in-law of the appellant (PW-6), who was the eyewitness to the incident, turned hostile and resiled from her earlier statements.

III. There are serious lapses in the investigation carried out in this case. Exhibits collected from the child victim were not sent for FSL examination and no exhibits were taken from the accused by the examining doctor. Additionally, no independent witness was examined by the prosecution.

IV. As per the testimony of the doctor examining the child victim and the MLC, the hymen of the child victim was found to be intact and there was no external injury found on the child victim.

V. The appellant has been fa