Conviction upheld based on consistent and reliable testimony of child victim, establishing guilt under POCSO Act despite absence of severe injuries; presumption of guilt applies once foundational facts are proven.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present appeal has been instituted under Section 374(2) CrPC seeking to set aside the judgment of conviction dated 11.08.2023 and order on sentence dated 22.08.2023 passed by the ASJ-07(POCSO)/West Tis Hazari Courts, Delhi arising out of FIR No.392/2015 registered under Sections 376/506 IPC and Section 6 POCSO Act at P.S. Hari Nagar, Delhi.

Vide the impugned judgement, the appellant was convicted for the offence under Sections 376/506(II) IPC and Section 6 POCSO Act and vide the order on sentence, the appellant has been directed to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 376(2) IPC alongwith payment of fine of Rs.10,000/- in default whereof he has been directed to further undergo simple imprisonment for a period of 1 month and rigorous imprisonment for a period of 3 years for the offence punishable under Section 506(II) IPC alongwith payment of fine of Rs.4,000/- in default whereof he has been directed to further undergo simple imprisonment for a period of 1 month. The benefit of Section 428 Cr.P.C. has also been provided to the appellant and all the sentences have been directed to run concurrently.

2. The facts, as noted by the trial court are reproduced here under:-

On 13.03.2015, DD No. 16A was received by SI Ramphal regarding sexual assault with a 7 years old female child at her school by a school peon and he went to the spot and mother of the victim had alleged that her daughter, aged 7 years, was quite for the last few days and refused to go to school and told that one sweeper, Deepak used to follow her whenever she used to go to bathroom and on the pretext of cleaning the bathroom, he used to bolt the door and touch the breast of victim girl, kiss her and used to show his private part to her and insert his finger in her vagina and also threatened that if she disclosed the same to anyone, then he would kill her parents with a knife and would also break victim’s hands and legs.

3. On completion of investigation, charges were framed under Sections 354/376/506 IPC and 6/10/12 POCSO Act to which the appellant claimed not guilty and claimed trial.

4. The prosecution examined 9 witnesses to prove its case. The mother of the victim was examined as PW1. The child victim was examined as PW2. The Principal of the school where the incident occurred deposed as PW3. PW8, Dr. Sunita Seth proved the MLC. W/SI Sateywati who was the IO was examined as PW9. The rest of the witnesses were formal who deposed as to various aspects of investigation.

On the other hand, statement of the appellant was recorded under Section 313 Cr.P.C., wherein he denied all evidence and claimed that he was falsely implicated.

5. Learned counsel for the appellant submits that the testimony of the prosecutrix is inconsistent and suffers from material contradictions. The father of the child victim was never examined and the child victim has failed to give any specific date of incident and in fact was not attending school regularly for this incident to have occurred. The MLC does not disclose any injury on the private parts of the victim and the hymen was found to be intact. The Principal of the school has not supported the prosecution's case. The place of appellant‟s arrest is doubtful and that he was handed over by the public persons and not by school staff. Lastly, it is contended that the appellant is being falsely implicated due to the parents having a grudge against him.

6. Learned APP for the state submitted that the testimony of the child victim as well as the mother