$~12 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12.03.2025 + CRL.A. 121/2023 BALJEET SINGH .....Appellant Through: Ms. Inderjeet Sidhu, Adv.

versus STATE NCT OF DELHI & ANR.

.....Respondent Through: Mr. Sunil Kr. Gautam, APP Mr. Pradeep Gahalot, APP SI Archana, PS Delhi Cantt.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH : JASMEET SINGH, J (ORAL

1. This is an appeal seeking setting aside of the impugned judgment dated

07.10.2022 and order on sentence dated 23.12.2022 passed in SC No. 8485/2016 in FIR No. 327/2015 registered at PS Delhi Cantt. under Section 6 of POCSO Act by the learned ASJ-01, Special POCSO Court, Patiala House Courts, New Delhi.

2. The appellant has been convicted for offences punishable under Section

6 of POCSO Act and sentenced to 10 years rigorous imprisonment and fine.

3. The facts are that on 26.06.2015, an FIR was registered under Section Digitally Signed CRL.A. 121/2023 Page 1 of 12

10 of POCSO Act on the allegation that the appellant had sexually assaulted the victim by putting his finger into her vagina.

4. The information was received at PS Delhi Cantt. vide DD No. 37B dated 26.06.2015 indicating that the appellant had misbehaved with the victim at House No. 351, Kotwali Road, Gopinath Bazar, Delhi Cantt., Delhi.

5. The SI proceeded to the place of incident for conducting inquiry on the complaint.

6. The mother of the victim met the SI at the above-mentioned address and informed that the victim daughter was aged about five and a half years and was sexually assaulted by her uncle i.e. the appellant.

7. The victim was sent to the DDU Hospital along with her mother for a medical check-up. She was taken to the Police Station where her statement was recorded.

8. The victim has informed the police officials that the appellant had removed her pants and inserted his finger into her vagina. She also stated that her mother saw this act and shouted at him and that is when the appellant ran away from the spot.

9. The FIR was registered but the appellant was not found on his house on that day but was arrested on 29.06.2015 from Hari Nagar, Delhi.

10. The FIR is exhibited as Ex. P/AD1.

11. Charges were framed on 07.10.2015 and the appellant pleaded not guilty and prayed for trial.

12. The prosecution examined 4 witnesses, and the respondent did not lead any evidence.

13. After going through the entire evidence material on record, the Digitally Signed CRL.A. 121/2023 Page 2 of 12 impugned judgment was passed.

14. Ms. Sidhu, learned counsel for the appellant appointed by the DHCLSC states that the statement of the PW-1 i.e. the mother and PW-2 i.e. the complainant/victim are inconsistent and cannot be relied upon. She states that benefit of doubt must be given by the appellant.

15. She further states that the ingredients of offence of aggravated sexual assault under Section 6 of POCSO have not been made out and there are major contradictions, inconsistencies and improvements in the statements of material witnesses.

16. It is stated that the presumption under Section 29 read with Section 30 of POCSO Act as such cannot be attracted since the foundational facts are to be proved beyond reasonable doubt. This defence of the appellant has not been considered by the learned Trial Court.

17. I have heard the learned counsel for the parties and perused the documents on record.

18. In the present case, the testimony of both the PW-1 i.e. the mother and PW-2 i.e. the complainant/victim are consistent regarding the incident.

The same are reproduced as under:-

04.04.2016 PW-1 Smt. Dolly, W/o Sh. Ashok Kumar, Aged about 23 years, R/o House no. 51B, Servant Quarters, Kotwali Road, Gopi Nath Bazar, Delhi Cantt.

On SA ……….

I do not remember the exact date. However, it was summer season in Digitally Signed CRL.A. 121/2023 Page 3 of 12 the year 2015. In the morning hours I went to the house of my employer while leaving my all three daughters in the servant quarters. I used to come to my room in order to see my children. It was about 10/11 AM I came