JUDGMENT

1. The present appeal has been filed seeking setting aside of the judgment of conviction dated 08.03.2018 and the order on sentence dated 09.03.2018 passed by the learned ASJ-01, North West District, Rohini Courts, in SC No. 15/2016 arising out of FIR No. 1067/2015 registered under Section 376 IPC and Section 6 POCSO at P.S. Sultan Puri.

The appellant was acquitted under Section 506 IPC and convicted under Section 6 read with Sections 5 (m) & (p) POCSO. Vide the impugned order on sentence, he was directed to undergo RI for a period of 10 years along with payment of fine of Rs.5,000/-, in default whereof he would undergo SI for 1 month, for the offence punishable under Section 6 POCSO. The benefit under Section 428 Cr.P.C. was granted to the appellant.

2. The facts of the case, as noted by the Trial Court, are reproduced hereunder:-

“Brief facts of the prosecution case are that on 05.11.2015, the complainant who is the paternal grandmother of the victim D came to P.S. Sultan Puri along with the victim, aged about 6 years and stated that her husband Hamid Khan did wrong act with the victim on 16.10.2015 for which she wants to make a complaint. Since the allegations were of rape, assistance of NGO was taken who counseled the victim and the complainant and thereafter statement of complainant was recorded to the effect that her first husband XXXX died about 15 years before and she had two sons from him. Whereabouts of one son is not known, and the children of her second son XXXX are living with her. Her second husband Hamid Khan about six months before inserted his finger in the private part of her grand daughter victim D and the victim informed her about the same and since then, she was keeping the victim always alongwith her. On 16.10.2015, she was lying on bed after coming from the hospital that she saw her husband moving his hand on the private part of the victim. She could not come to PS because she was not well and now she wants that action should be taken against her husband. FIR was registered and the IO visited the spot and in between beat Ct. Rinku met him and he was joined in the investigation and accused who was found in the jhuggi was apprehended. He was, thereafter arrested and the victim was medically examined with alleged history of sexual assault by her grand father Hamid Khan. This alleged history was given by the complainant with last episode of sexual assault on 16.10.2015. The statement of the victim u/s 164 Cr.P.C. was got recorded where she stated that her grandfather used to lie her on the bed and remove her panty and thereafter used to touch his pishab wali jagah to her pishab wali jagah. He also used to insert his pishab wali jagah into her pishab wali Jagah as well as his finger. He used to ask her to sleep with him and on her refusal, he used to drag her to his bed and also threatened to kill her if she will inform to her grandmother(dadi). After completion of investigation chargesheet was filed. Copies supplied.”

3. The prosecution examined 7 witnesses in support of its case. The child victim was examined as PW-3 and the complainant, i.e., the child victim‟s grandmother, was examined as PW-4. PW-7 is the Duty Officer who proved the subject FIR and the endorsement on the rukka. PW-1, Asst. Health Inspector, Birth & Death, MCD Office, established the age of the child victim by proving her birth certificate. PW-2 is the learned MM who recorded the statement of the child victim under Section 164 Cr.P.C. Dr. Anubha Verma (PW-5) medically examined the child victim and deposed that her hymen was found torn. PW-6 is the I.O. of the case who deposed as to various aspects of the investigation.

4. Learned counsel for the appellant contends that the present case is one of false implication, as there are various inconsistencies in the child victim‟s statements and it is an admitted fact that the appellant and the complainant had quarrels over the appellant objecting to the complainant‟s son residing in thei