The court upheld the conviction for aggravated penetrative sexual assault emphasizing the gravity of offenses committed by a parent against their child, confirming the necessity of severe sentencing.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374 (2) read with Section 383 of the Criminal Procedure Code, 1973 (the Cr.P.C.) the sole accused in Sessions Case No.787/2017 on the file of the Additional Sessions Judge (POCSO), Dwarka Courts, New Delhi, assails the judgement dated 20.07.2019 and order on sentence dated 23.07.2019, as per which he has been convicted and sentenced for the offence punishable under Section 6 read with 5 (l) & (n) of the Protection of Children from Sexual Offences Act, 2012, (the PoCSO Act).

2. The prosecution case is that during the period from April 2016 till the intervening night of 25.06.2017-26.06.2017 at D-32, Sewak Park, Dwarka Mor, Delhi, the accused repeatedly committed penetrative sexual assault on PW1, his daughter.

3. Based on Exhibit PW1/A FIS of PW1, dated 26.06.2017, Crime No.423/2017, Bindapur Police Station, that is Ext. PW11/A, FIR was registered by PW11, Head Constable (HC). PW18, Sub- Inspector conducted investigation into the crime and on completion of the same, filed the charge-sheet/ final report alleging commission of offences punishable under 376 and 506 of the Indian Penal Code, 1806 (the IPC ) and under Section 6 of the PoCSO Act.

4. When the appellant/accused was produced before the trial court, all the copies of the prosecution records were furnished to him as contemplated under 207 Cr.PC. After hearing both sides, the trial court as per order dated 02.02.2018, framed a charge under Section6 read with Section 5 (l) & (n) PoCSO Act and, in the alternative, under Section 376 (2) (f) & (n) IPC , which was read over and explained to the appellant/accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs.1 to 18 were examined and Exts. PW1/A-C, PW2/A-D, PW4/A, PW5/A, PW8/A, PW9/A- F, PW11/A-B, PW12/A, PW13/A, PW15/A, PW16/A, PW17/A-D, PW18/A-E were marked in support of the case.

6. After the close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence led by the prosecution. He denied all those circumstances and maintained his innocence. He submitted that he had been falsely implicated because he objected to the frequent visits abroad, of his wife and also the love affair of PW1 with one Vijay.

7. After questioning the accused under Section 313 (1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Section 232 Cr.P.C. is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (SeeMoidu K. vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Section 232 Cr.PC has caused any prejudice to him.

8. On behalf of the defence, DW1 was examined.

9. Upon consideration of the oral and documentary evidence on record and after hearing both sides, the trial court, vide the impugned judgment dated 20.07.2019 held the appellant/accused guilty of the offence punishable under Section 6 read with 5 (l) & (n) of the PoCSO. Consequently, the trial court vide order on sentence dated 23.07.2019 sentenced the appellant/accused to undergo rigorous imprisonment for a period of 15 years for the offence punishable under Section 6 read with 5 (l) & (n) of the PoCSO and to fine of Rs. 50,000/- and in default of payment of fine, to undergo simple imprisonment for 06 months. Aggr