Court upheld conviction for sexual assault on a minor, emphasizing the victim's consistent testimony and DNA evidence, affirming that penetration under POCSO can occur without severe physical injury.

JUDGMENT

Vibhu Bakhru, J. The appellant has filed the present petition, impugning a judgment dated 28.01.2016 (hereafter the `impugned judgment') and order on sentence dated 30.01.2016 passed by the ASJ, North-West District, Rohini District Court, New Delhi, whereby the appellant was convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter the `POCSO Act') and was awarded ten years of rigorous imprisonment and a fine of Rs.10,000/-. In default of the fine, he would have to undergo simple imprisonment for a further period of six months.

2. It is the prosecution's case the appellant had committed penetrative sexual assault on the victim who was, at the material time, less than eight years old. The appellant, who is a vendor of balloons, had enticed the child victim by giving her Rs.20/- and one balloon and thereafter, lured her into bushes and had sexually assaulted her. The victim had raised an alarm. One Shri Rajesh (who had deposed as PW8) was passing by. He had rescued the victim. The appellant had tried to run away, but was apprehended.

3. The appellant contends that the Trial Court has failed to appreciate that the evidence brought on record is insufficient to convict the appellant. The appellant contends that the testimony of PW8 - who according to the prosecution had allegedly caught hold of the appellant while committing the offence - did not establish the case of the prosecution. The appellant contends that PW8 could neither recount the date of the alleged incident and nor could he identify the appellant. Further, the appellant contends that PW-7's testimony is hearsay based on what he heard from PW-8 and thus, could not have been relied upon. The appellant also contends that the testimony of PW-11 is hearsay as well, because PW-11 recounted whatever he had heard from public persons and thus, cannot be relied upon.

4. Further, the appellant submits that the MLC of the victim records that there were no injuries to the victim's private parts, which is highly improbable if she had been the subject to forced sexual intercourse. And, the abrasions on the vulva could have been caused by scratching also, a fact stated by PW-10 in her testimony. The prosecution has failed to prove that the alleged clothing items recovered (frock and knickers) belonged to the victim, since the said items were not identified by the victim. Thus, the appellant contends that the DNA report to connect the said articles of clothing to the appellant is inconclusive.

5. The site plan, as prepared by PW-18, is also contested by the appellant. He contends that the same was not prepared by her at the instance of any public person. The appellant also states that there are material inconsistencies in the testimony of the victim (who deposed as PW-9) and submits that she is a tutored witness and her story is not supported by medical evidence.

6. In order to prove its case, the prosecution examined eighteen witnesses and the defence did not lead any evidence.

Evidence

7. Sh. Shripal Singh, Principal, MC Primary Girls School, Qutubgarh, Delhi was examined as PW-1, and he deposed as to the age of `N' (name withheld to avoid ignominy). He deposed that as per the admission form and the affidavit issued by `N's mother, her date of birth was 22.05.2006. He produced other documents to supplement the same including the original pasting file containing the original admission form and affidavit and original admission register. PW-1 was not cross-examined by the defense.

8. WHC Saroj, PS Sultan Puri, Delhi was examined as PW-3. She deposed that on 17.11.2013, s