The court upheld the conviction for sexual assault under the POCSO Act, emphasizing the weight of direct testimony and corroborating evidence despite defence claims of inconsistencies.

JUDGMENT

Mukta Gupta, J.

1. By the present appeal, the appellant challenges the impugned judgment dated 31st January, 2017 whereby he was convicted for offences punishable under Section 342 IPC and Section 6 of the POCSO Act and the order on sentence dated 2nd February, 2017 whereby he was directed to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.5000/- for offence punishable under Section 6 POCSO Act in default of payment of fine to undergo simple imprisonment for 30 days as also rigorous imprisonment for a period of one year and a fine of Rs.5000/- for offence punishable under Section 342 IPC in default whereof to undergo simple imprisonment for 30 days.

2. Learned counsel for the appellant contends that the prosecution has not been able to prove beyond reasonable doubt the charge against the appellant that he committed penetrative sexual assault upon the victim as the version of the victim and her mother is not supported by medical evidence or the forensic evidence. There is no evidence at all of any penetrative sexual assault as the hymen of the victim was found intact. There are material inconsistencies in the testimony of the victim, her mother and other witnesses showing that the appellant has been falsely implicated on the basis of false and fabricated depositions. During the course of examination, the victim was not even able to tell the location of the room where the appellant allegedly took her, or as to the time for which she stayed in the room of the appellant. Conviction is based on the testimony of interested witnesses and no independent witness was associated despite other people residing in the neighbourhood. Learned Trial Court erroneously concluded that there was no ulterior motive to falsely implicate the appellant as there was no previous animosity or ill-will between the child witness and the appellant. Explanation of the appellant that he had given a sum of Rs.34,500/- to the mother of the victim and when the appellant demanded back the said amount, the mother of the victim did not return the same and falsely implicated the appellant in this case has not been considered by the learned Trial Court.

3. In the alternative, it is also contended that the sentence of rigorous imprisonment of 15 years awarded to the appellant is excessive. The appellant himself has a minor child aged 4 years, appellant was the only earning member in the family and hence the sentence be reduced to the minimum sentence prescribed for the alleged offence.

4. Countering the arguments of learned counsel for the appellant, learned APP for the State submits that the victim and her mother have stood the test of cross-examination and despite extensive cross-examination nothing could be elicited from them. The offence was reported immediately and blood was found on the underwear of the victim. When the complainant entered the room of the appellant, immediately after being informed by the victim, she found the appellant only in his underwear and was in the process of wearing other clothes. Besides, the other neighbour Vishnu also noticed the victim crying. Version of the victim and her mother is duly supported by the FSL report as well. Since the appellant committed a serious offence of rape on a minor victim aged 4 years, no leniency be shown and the conviction and sentence of the appellant be upheld.

5. FIR No. 644/2014 was registered at PS Mukherjee Nagar for offence punishable under Section 342/376 IPC and Section 6 of the POCSO Act on a statement made by the mother of the victim, who stated that on 24th June, 2014 at about 8.00 PM while she was cooking dinner, her elder daughter the victim aged