The burden of proof for an alibi lies with the defendant, and discrepancies in child witness testimonies do not undermine the conviction as long as evidence remains credible.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. By way of the present appeal, the appellant seeks to assail the judgment of conviction dated 11.05.2023 and the order on sentence dated 22.07.2023, passed by the learned Additional Sessions Judge-01, POCSO, Dwarka Courts, New Delhi, in SC No. 650/2017 arising out of FIR No. 661/2017 registered under Sections 10 and 9(m) POCSO at P.S. Bindapur, Delhi.

Vide the aforesaid judgment and order on sentence, the appellant was convicted under Section 10 read with Section 9 (m) POCSO and sentenced to undergo rigorous imprisonment for a period of 5 years along with a fine of Rs.30,000/-, in default whereof he was directed to further undergo simple imprisonment for a period of 30 days. Benefit under Section 428 Cr.P.C. was extended to the appellant.

2. The prosecution’s case in a nutshell is that on 06.09.2017, the 5-year- old child victim, accompanied by her 8-year-old cousin, went to a photo studio to collect photographs, and while at the studio, the appellant called the child victim over, unzipped his pants, and forced her to touch his private parts. Distressed, the child victim hurried home and informed her mother of the incident. Based on her statement, an FIR was lodged against the appellant and he was arrested by the police. Upon completion of the investigation, a chargesheet was filed, and the Trial Court framed charges against the appellant under Sections 10 and 9(m) POCSO.

3. During the trial, the prosecution examined a total of 10 witnesses in support of its case. The child victim testified as PW-1, her mother as PW-2, her cousin as PW-9, and the owner of the photo studio as PW-5. On the other hand, the appellant, in his statement recorded under Section 313 Cr.P.C. , asserted his innocence and claimed false implication. He led defence evidence and examined two witnesses: his sister, who was examined as DW-1; and a neighbour of the appellant who was a battery-rickshaw driver by profession, as DW-2.

4. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case. He contends that the appellant has been targeted due to his exposure of a neighbourhood sex racket, and that the present case is an attempt to extort money from him. The defence of alibi has been raised, and the learned counsel further submits that there are material discrepancies in the various statements of PW-1 and PW-9, which suggest that the testimonies of the child victim and her cousin may have been tutored. He also argues that the appellant has been targeted as a result of a quarrel between the child victim’s mother and the owner of the studio. Additionally, the learned counsel points to shortcomings in the investigation, such as the failure to seize photographs, the cash bill, or the studio’s customer register, and lastly, the non-examination of any public witnesses during the appellant’s arrest.

5. Learned APP for the State, duly assisted by the learned Amicus Curiae appointed for the complainant, has vehemently opposed the present appeal, asserting that the appellant has been rightfully convicted by the Trial Court. She submits that the impugned judgment of conviction is well- reasoned and that the points raised by the appellant are frivolous and trivial in nature, which do not in any way affect the core of the matter. It is further submitted that the appellant’s defence of alibi was an afterthought, and the other contentions raised by the appellant are wholly unsubstantiated and do not undermine the conviction in any way.

6. I have heard the learned counsels for the parties and gone through the record.

7. In the child victim’s complaint recorded by SI Usha (PW-10), which is exhibited as PW-1/A, the child victim stated that when she went to the photo studio to collect her photographs, an “uncle” present at the studio called her to come near him, unzipped his pants, and grabbed her h