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* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 11^th March, 2025 Pronounced on: 13^th May, 2025 + CRL.A. 531/2024 & CRL.M.A. 37472/2024 (for modification)

SHIVA @ VIKAS .....Appellant Through: Mr. B. Badrinath, DHCLSC with Mr.

Dhruv Bhardwaj, Advocates.

versus THE STATE & ANR. .....Respondents Through: Ms. Manjeet Arya, APP for the State.

CORAM:

HON'BLE MR. JUSTICE AMIT SHARMA

JUDGMENT

AMIT SHARMA, J.

1. The present appeal under Section 374(2) read with Section 482 of the Cr.P.C. has been filed assailing the judgment of conviction dated 22.05.2023 and order on sentence dated 23.11.2023 passed by learned Additional Sessions Judge (FTSC)(POCSO)-01, Central District, Tis Hazari Courts, Delhi, whereby the appellant has been convicted in Sessions Case No. 575/2017 arising out of FIR No. 177/2017, under Sections 363/376/323 of the Indian Penal Code, 1860, (for short, ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’), registered at Police Station Kashmere Gate.

Signature Not Verified Digitally Signed By:BHASKAR

2. The appellant by way of the impugned judgment of conviction and order on sentence has been convicted for the offences punishable under Section 376 read with Sections 323 and 363 of the IPC and Section 6 of the POCSO Act and vide the order on sentence dated 23.11.2023, the appellant was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-, in default of payment of fine, he was further sentenced to undergo simple imprisonment of 6 months for committing the offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Further, the appellant has been sentenced to undergo rigorous imprisonment for a period of 1 year for committing the offence punishable under Section 323 of the IPC. The appellant was also sentenced to undergo rigorous imprisonment for a period of 7 years, and to pay a fine of Rs.10,000/-, and in default of payment of fine, he was sentenced to undergo simple imprisonment of 6 months for committing the offence of kidnapping, punishable under Section 363 of IPC. Benefit of Section 428 of the Cr.P.C. was given to the appellant and all the sentences were directed to run concurrently.

FACTUAL BACKRGOUND

3. The facts relevant for the purpose of present appeal are as follows: -

3.1 On 25.05.2017 on receipt of DD No. 4B, the Police officials of Police Station Kashmere Gate reached at Flyover, Yamuna Bazar, near Hanuman Mandir where Mahila Aayog Counsellor, Smt. Laxmi along with the parents of the survivor were present and the mother of the survivor gave a complaint, wherein, she alleged that she has been residing in the area of Hanuman Signature Not Verified Digitally Signed By:BHASKAR Mandir, Yamuna Vihar, and was surviving by way of begging. It was stated that on 20.05.2017, at about 10.30 P.M. she had left her 6 years old daughter (the ‘survivor’) who was sleeping on a footpath below the Flyover near Hanuman Mandir and had gone to get some mosquito repellent and around the same time, her husband had also gone somewhere. It is stated that when she returned after some time, her daughter was missing, and when she asked her husband about her whereabouts, he responded that he did not know and on account of the same there was a dispute between them. It is further stated that, thereafter, she asked other people residing there and started searching for her daughter.

3.2 It is alleged that after some time when she returned after searching for her daughter, she saw her husband sitting below the Flyover with her daughter in his lap, cleaning her and she saw that her daughter was bleeding from her vagina and also observed a bite mark on her right cheek as well as her swollen lips. It is stated that her daughter was crying and when she asked her husband about the same, she was informed that the appellant had left the child with her husband and then because of this, there was a dispute between the mothe