Burden of proof lies on the prosecution to establish guilt beyond reasonable doubt, particularly in cases involving child witnesses; reliable testimony can lead to conviction even amidst inconsistencies from other witnesses.

JUDGMENT

1. The present appeal is filed under article 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) on behalf of the appellant Ajeet Singh (hereinafter referred to as “the appellant”) against the judgment on conviction dated 27.03.2023 and order on sentence dated 10.05.2023 passed by the court of Sh. Ravinder Singh, Additional Sessions Judge (Special Court, POCSO Act), East, Karkardooma Courts, Delhi in Sessions Case no.463/2016 arising out of FIR bearing no.0558/2015 registered under sections 377/506 of the Indian Penal Code, 1860 (hereinafter referred to as “ IPC ”) and under sections 6/8/12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”) at P.S Kalyanpuri.

2. The factual background is that SI Sudhir Rathee after receipt of DD no. 27A dated 24.06.2015 reached at LBS Hospital along with the respondent no. 2 and her two sons J aged about 7 years and A aged about 4 years where they were medically examined vide MLC bearing no 9259/15 and 9260/15 with alleged history of sodomy. The doctor referred them to SR surgery for further opinion and examination. SI Sudhir Rathee again on 26.05.2015 took the respondent no.2 and the victims J and A to LBS Hospital for obtaining forensic opinion and the doctor after examination opined that the possibility of sodomy/anal intercourse by erect penis of adult/any structure resembling it cannot be ruled out.

2.1 The respondent no.2 handed over a written complaint dated 26.06.2015 to SI Sudhir Rathee (hereinafter referred to as “the Investigating Officer”) wherein she primarily stated that she was residing at house bearing no. 20/144, Kalyanpuri along with family. The appellant who is her husband has been sexually exploiting her elder son J for the last three years and also started to sexually exploit her younger son A. The appellant and her mother also threatened the respondent no.2 and both the victims J and A were living under threats and fear. The appellant on 22.06.2015 in the night again committed the offence of aggravated penetrative sexual assault upon victims J and A and said fact was disclosed by the victims J and A to her.

2.2 The Investigating Officer on the basis of the MLCs of the victims J and A and surgery and forensic opinions got registered FIR bearing no 0588/2015 under sections 377/506 IPC and 6/8/12 of POCSO Act at P.S. Kalyanpuri. The statements of victims J and A were recorded under sections 161 and 164 of the Code. The appellant was arrested on 07.07.2015. The exhibits were sent to FSL. The charge sheet was filed after completion of investigation and the appellant was put to trial for offences punishable under sections 377/506 IPC and 6/8/12 of POCSO Act. The case after complying with the provision of section 207 of the Code was committed to the Court of Sessions. The court of Sh. Raghubir Singh, ASJ-01, East, Karkardooma Courts, Delhi vide order dated 24.01.2017 framed the charge against the appellant for offence punishable under section 6 of the POCSO Act on allegations that the appellant was sodomizing the elder son J (aged about seven years) for the last about three years prior to lodging of the complaint and also sodomized him on 22.06.2015 in the night and the appellant also sodomized the younger son A ( aged about 4 years) for some times and particularly on 22.06.2015 in the night. The appellant pleaded not guilty and claimed trial.

2.3 The prosecution during trial examined 9 witnesses including victim J as PW1, victim A as PW2, the respondent no. 2/Complainant as PW3 and Investigating Officer as PW7. The appellant as per section 294 of the Code admitted recording of statements of the victims J and A as Ex.PW1/A and Ex.P1 respectively under section 164 of the Code by the court of Ms. Swati Katiyar, MM, East, Karkardooma Courts, Delhi, FIR as Ex.P2, DD no. 27A dated 24.06.2015 as Ex.P3, Potency Report as Ex.P4, age proof of the victims as Ex.P5 and Ex. P6 and FSL Report