The court upheld the conviction under POCSO Act based on corroborative medical evidence, maintaining that hostility of witnesses does not nullify the prosecution's case when foundational facts are established.

JUDGMENT :

MANOJ KUMAR OHRI, J.

CRL. M(B) 1255/2024

1. With the consent of parties, the appeal itself is taken up for hearing.

2. In view of the above, the present application becomes infructuous and is disposed of as such.

CRL.A. 664/2024

1. By way of the present appeal, the appellant (father of child victim) seeks to assail the judgement of conviction dated 25.09.2023 in Session Case No.816/2017, vide which he has been convicted Sections 376 (2)(f) & (n)/377 of IPC and Section 6 of POCSO Act. Vide order on sentence dated 01.03.2024, he was directed to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 6 of POCSO Act alongwith payment of fine of Rs.1,000/-, in default whereof he was directed to further undergo simple imprisonment for a period of 1 month. The benefit of Section 428 Cr.P.C. was provided to the appellant.

2. Briefly, the facts in a nutshell are that on 22.09.2017, the prosecutrix ‘A’ aged about 9 years, accompanied by her class teacher ‘M’ appeared in the Police Station and made following statements against her own father: -

3. The child victim was medically examined at Lady Harding Hospital and her statement was recorded under Section 164 Cr.P.C. before the learned MM (Ex.PW-2/B) in which she stated as under:-

4. On completion of investigation, charge under Sections 376 /377/506 IPC and Section 6 of POCSO Act was framed against the appellant vide order dated 01.12.2017, to which he pleaded not guilty and claimed trial. During trial, a total of 15 prosecution witnesses were examined. The Principal of the School, where the child victim was studying, who proved the age of the victim, was examined as PW-1. The child victim was examined as PW-2. The mother of the child victim, RK was examined as PW-3. The class teacher ‘M’, who had accompanied the child victim to the Police Station, was examined as PW-5. The MLC of the child victim was proved by Dr. Manvi, who was examined as PW-6. The FSL Report was proved through Ms. Sunita Gupta, Senior Scientific Officer (Biology) FSL, Rohini, Delhi, who was examined as PW-14. W/ASI Babita was examined as PW-15.

5. Learned counsel for the appellant while assailing the impugned judgment has raised threefold contention. Firstly, the child victim and her mother have turned hostile and did not support the prosecution’s case. Secondly, the appellant is falsely implicated by the child victim on the instigation of her class teacher ‘M’ who bears a grudge against the appellant as there were prior quarrels between them, as his daughters used to get Rs.2,000/- each from NGO, however, the said money was intentionally siphoned off by M. Thirdly, the prosecution’s reliance on the FSL Report on the underwear of the child victim falls flat as the child victim did not identify the said underwear in her testimony. Lastly, it is contended that though the samples were collected on 28.09.2017, there was delay in sending the same to FSL.

6. Per contra, learned APP for the State, duly assisted by learned counsel for the child victim, has defended the impugned judgment and refuted the contentions. It is contended that when the testimony of the child victim was recorded, she was residing with her mother, who had taken her custody from CWC (Central and Central Delhi) on 09.10.2017 and therefore, on account of being tutored by her mother, the child victim resiled from her earlier statement recorded during the investigation. Learned APP has referred to the MLC and FSL Report to submit that the same conclusively proved that the appellan