JUDGMENT

AMIT SHARMA, J.

1. The present appeal under Section 374 of the Code of Criminal Procedure, 1973 (‗CrPC‘) challenges the judgment of conviction and order on sentence dated 20.01.2017 and 30.01.2017 respectively passed by the learned Additional Sessions Judge – 01 (North-West), Rohini District Courts, New Delhi, in Sessions Case No. 1/16 arising out of FIR No. 1043/15 under Section 376 of the Indian Penal Code, 1860 (‗IPC‘) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‗POCSO‘) registered at PS Sultan Puri. The appellant has been convicted for offence under Section CRL.A. 779/2017 Page 1 of 11 Signature Not Verified Digitally Signed By:RANJU BHALLA

6 of the POCSO and has been sentenced to undergo rigorous imprisonment of for 10 years alongwith a fine of Rs. 5,000/- and in default of payment of fine, further simple imprisonment for 03 months.

Background

2. Briefly stated, the facts of the present case are as under:

i. At H.No. 1368, Lakhi Ram Chowk, Kartarwali Gali, Village Poth Kalan, Delhi, the victim, aged about 05 years, resided in one room and the appellant Faiyaz @ Payazi and one Bahadur Singh resided in the adjoining room. The mother of the victim worked at a bangle manufacturing factory located in the same street. The appellant and Bahadur Singh worked at another factory.

ii. On 27.10.2015 at about 03:00 PM, the victim went to the factory where her mother was working and informed her that the appellant has inserted his finger into her vagina, which caused bleeding.

iii. The victim‘s mother called the police. The Investigating Officer reached the spot and made preliminary enquiries from the victim. Thereafter, the statement of the victim‘s mother was recorded. The victim was medically examined and it was found that she was suffering from slight congestion at her hymenal area. The mother of the victim refused internal examination of the latter.

iv. The statement of the victim under Section 164 of the CrPC was recorded and the appellant was arrested on 28.10.2015. On completion of investigation, chargesheet was filed.

v. The prosecution examined 09 witnesses and statement of the appellant was recorded under Section 313 of the CrPC.

CRL.A. 779/2017 Page 2 of 11 Signature Not Verified Digitally Signed By:RANJU BHALLA vi. After considering the evidence lead by the parties and their rival contentions, the learned ASJ passed the impugned judgment of conviction and order on sentence.

Submissions on behalf of the Appellant/Faiyaz @ Payazi

3. Learned counsel appearing on behalf of the appellant submitted that the case of the prosecution is based on the allegation that the appellant inserted his finger into the victim‘s (PW-4) vagina. It was submitted that prior to the incident, the victim‘s mother had a quarrel with the appellant over the issue of filling water from a common public hydrant in the street.

4. Learned counsel for the appellant further submitted that the case of the prosecution rests primarily upon the sole testimony of the victim (PW-4), however, the same has not been sufficiently corroborated by medical or forensic evidence. It was submitted that the learned ASJ has based the conviction of the appellant solely on the uncorroborated testimony of the victim who may have easily been tutored by her mother who had a quarrel with the appellant in the recent past.

5. Learned counsel for the appellant drew the attention of this Court to the MLC of the victim (Ex. PW-6/A) which reflects that she had refused internal gynaecological examination by the doctor. It was submitted that the MLC further reflects that on a local examination of genitals of the victim, nothing abnormal was detected and the hymen was found intact with no injury, except for a slight congestion. It was submitted that Dr. Urmila, Senior Gynaecologist (PW-9) categorically stated that the slight congestion could be on account of insertion of finger into the vagina or on account of an infection, itching or scratching the vaginal area with