JUDGMENT

MANOJ KUMAR OHRI, J.

1. The present appeal has been filed under Section 374(2) Cr.P.C. on behalf of the appellant against the judgment of conviction dated 19.04.2018 and the order on sentence dated 24.04.2018 passed by the learned Addl. Sessions Judge- 01/Special Judge, POCSO Act, North District, Rohini Courts, Delhi in SC No. 59140/2016 arising out of FIR No. 245/2016 registered under Sections 354/354A IPC and Sections 8/10 of the POCSO Act at Police Station Adarsh Nagar, Delhi, whereby the appellant was convicted for the offences punishable under Section 354 IPC and Section 10 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for a period of 05 years alongwith fine of Rs.20,000/- in default whereof to undergo Simple Imprisonment for a period of

30 days for the offence punishable under Section 10 of the POCSO Act.

2. The brief facts, as noted by the Trial Court, are that on 25.05.2016, the child victim as well as both her parents were at home, when at about 9 a.m., the mother of the child victim sent her to the market, to bring some articles. On her way back, while the child victim was climbing the stairs to her house, the appellant came there and caught hold of her hand. He pulled her towards the corner and started kissing her and removing her underwear, upon which she started shouting. The child victim’s younger brother saw her, and in the meantime, the mother of the child victim also arrived at the spot. She apprehended the appellant and by that time, the child victim’s father also reached the spot and called the police telephonically.

3. The charge sheet was filed and the Trial Court framed charge against the appellant for the offences punishable under Sections 354/354A IPC and Section

10 of the POCSO Act, to which he pled not guilty and claimed trial.

4. To prove its case in the trial, the prosecution examined a total of 9 witnesses. The child victim was examined as PW-1. The mother of the child victim, Ms. ‘L’, was examined as PW-2 and the father of the child victim, Mr. ‘A’, was examined as PW-8. The age of the child victim was proved by PW-3, a teacher of the school where she had studied. ASI Ram Avtar, the Investigating Officer of the case, was examined as PW-9. The child victim was medically examined on the day of the incident and an MLC prepared, as per which no external injury was visible. The mother of the child victim had refused the internal examination of the child victim. As there were no allegations of penetrative sexual assault having been committed upon the child victim, no samples were collected and sent to the FSL.

5. I have heard learned counsels for the parties and gone through the Trial Court Record. Learned counsel for the appellant submitted that though as per the Nominal Roll placed on record, the appellant has served the entire sentence awarded to him, he is pressing the appeal on merits.

AGE OF THE CHILD VICTIM

6. On the date of the incident, i.e., 25.05.2016, the child victim was less than 8 years of age, as her date of birth is 28.10.2008. The prosecution has proved the age of the child victim through PW-3 who was a teacher at the school where the child victim had studied. She brought on record the admission and withdrawal register maintained in the school (Ex.PW-3/A), a copy of the admission form (Ex.PW-3/B) and the affidavit (Ex.PW-3/C) sworn and given by the parents of the child victim at the time of her admission. She also exhibited the certificate (Ex.PW-3/D) issued by the school Principal certifying the child victim’s date of birth as per the school records. Further, during her in-Court examination, the child victim’s age was noted as 10 years. The appellant has not disputed the age of the child victim in the trial or even in the present appeal. Consequently, this Court concurs with the finding of the Trial Court that the child victim on the date of the incident was about 8 years old and thus a ‘child’ within the meaning of Section 2(d) of the POCSO Act.

ANALYSIS

7. The child