The medical and scientific evidence can outweigh ocular testimony when it makes the ocular testimony improbable.

JUDGEMENT

AMIT SHARMA, J. 1. The present appeal under Section 374 (2) Code of Criminal Procedure, 1973 ('CrPC') has been filed assailing the judgment of conviction and order on sentence dated 24.12.2016 and 10.07.2017 respectively, passed by the learned ASJ-01, South West District, Dwarka Courts, New Delhi, in SC No.

85/2/13 arising out of FIR No. 66/2013 registered at P.S. Najafgarh. The appellant has been convicted for the commission of the offences punishable under Sections 366 of the Indian Penal Code, 1860 (‗IPC‘) and 6 of the Protection of Children from Sexual Offences Act, 2012 (‗POCSO Act‘). The appellant was sentenced to undergo rigorous imprisonment for 6 years for the Page 2 of 15 offence punishable under Section 366 of the IPC alongwith a fine of ₹5,000/- and in default of payment of fine, further simple imprisonment for 01 month.

The appellant has also been sentenced to undergo rigorous imprisonment for 12 years for the offence punishable under Section 6 read with Section 5(m) of the POCSO Act alongwith a fine of ₹10,000/- and in default of payment of fine, further simple imprisonment for 02 months.

2. The brief facts, necessary for the disposal of the present appeal, are as under:

i.

On 14.03.2013 at about 08:40 P.M., vide DD No. 69B information was received by police that rape was committed with a girl aged 2 years, and this information was assigned to SI Seema.

ii.

SI Seema alongwith Ct. Rajender went to the spot where they came to know that a person named Sushil, who is the neighbour of the child victim had done a wrong act with her. It was also stated that Sushil was beaten by public and he was taken to hospital alongwith child victim and her mother to RTRM hospital by a PCR van.

iii.

SI Seema thereafter, went to RTRM hospital and found that the convict Sushil Yadav and child victim was admitted there. She collected the MLC and recorded the statement of victim‘s mother.

iv.

The victim‘s mother stated that she is a permanent resident of Village Fatehpur Majaula, Tehsil Gannor, Distt. Badayun, U.P. however, residing as tenant at RZ-86, Dharampura Colony, Najafagarh for the past seven years with her husband and child victim.

v.

She stated that at around 08:45 A.M. in the morning on the date of incident she was cooking food and her daughter was playing outside in Page 3 of 15 the gali (street). After 10-15 minutes, she heard that her daughter was crying, so she came out of her house. Going down 2-3 houses she saw that the appellant Sushil, who is a neighbour, had caught hold of her daughter and had removed his pants was doing wrong act with her daughter.

vi.

She raised hue and cry and tried to take her daughter from the convict but the latter did not leave the victim. As she was holding karchi in her hand, so she gave a blow of it on the head of the convict. In the meanwhile, other people from colony gathered and started beating convict. She took her daughter from the convict however, there was blood over her thighs.

vii.

Some person informed the police regarding the said incident. Based on the statement made by the victim‘s mother, rukka (Ex. PW-10/C) was sent to the police station and the FIR was registered.

viii.

After that, an investigation was conducted by police and evidences were collected, statements of witnesses were recorded and the convict/appellant i.e., Sushil Yadav was arrested on 22.03.2013 vide arrest memo Ex. PW-2/B. ix.

On completion of the investigation, police filed the chargesheet before the learned Trial Court and after hearing the appellant on charge, the learned Trial Court framed charges against him for the offences punishable under Section 366 of the IPC and Section 5(m) of the POCSO Act on 15.07.2013. x.

The appellant pleaded not guilty and claimed trial to the charges framed against him. During the trial to substantiate the charges framed, Page 4 of 15 pro