A conviction for sexual assault cannot be upheld where the victim's testimony contains material inconsistencies, suggesting a consensual relationship rather than coercion.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374 of the Code of Criminal Procedure, 1973, (the Cr.P.C.), the sole accused in SC No. 118/2014 on the file of the Additional Sessions Judge-01, North-West District, Rohini Courts, Delhi, assails the judgment dated 30.04.2016 and the order on sentence dated 03.05.2016 as per which he has been convicted and sentenced for the offences punishable under Sections 363 and 366 of the Indian Penal Code, 1860 (the IPC ) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act).

2. The prosecution case is that the appellant/accused about 8 to 9 months before 30.04.2014, kidnapped PW10, a minor aged 15 years from the lawful guardianship of her mother (PW11), took her to the juggi of his mami, at P-1, Sultanpuri, Delhi, knowing that she may be forced or seduced to illicit intercourse and thereafter repeatedly committed aggravated penetrative sexual assault on her. As per the chargesheet/ final report, the accused was alleged to have committed the offences punishable under Section 363 , 366, 376 IPC and Section 6 of the PoCSO Act.

3. On the basis of Exhibit PW10/A FIS of PW10, given on 01.05.2014, crime no. 484/2014, Sultan Puri Police Station, i.e., Exhibit PW4/A FIR was registered by PW4, Head Constable. PW14, Woman Assistant Sub Inspector (WASI) was entrusted with the investigation of the case. PW14 conducted investigation into the crime and on completion of the same, filed the charge- sheet/final report alleging commission of the offences punishable under the aforementioned sections.

4. When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him, as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court, vide order dated 03.07.2014, framed a charge under Sections 363 , 366, 376 of the IPC and Section 5 (I) read with Section 6 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs. 1 to 15 were examined and Exhibits PW1/A-C, PW2/A-B, PW3/A-D, PW4/A-C, PW5/A, PW7/A, PW8/A, PW10/A-E, PW12/B, PW13/A, PW14/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 of the prosecution. The accused denied all those circumstances and maintained his innocence. He claimed that he had been falsely implicated at the instance of the parents of PW10.

7. After questioning the accused under Section. 313(1)(b) CrPC, compliance of Section 232 CrPC was mandatory. In the case on hand, no hearing as contemplated under CrPC 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 Cr.P.C has caused any prejudice to him.

8. No oral or documentary evidence was adduced by the accused.

9. Upon consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court, vide the impugned judgement dated 30.04.2016 held the accused guilty of the offences punishable under Sections 363 and 366 IPC and Section 6 PoCSO Act. Vide order on sentence dated 03.05.2016, sentenced him to undergo rigorous imprisonment for a period of 3 years e