The act did not meet the criteria for aggravated penetrative sexual assault; conviction is instead warranted for aggravated sexual assault under Section 9(m) of the PoCSO Act.

JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 415(2) read with Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 , the appellant, the sole accused in SC No. 2685 of 2016 on the file of the Special Court under the Protection of Children from Sexual Offences Act, 2012 , Saket Courts, Delhi, assails the judgment dated 17.01.2025 as per which he has been convicted and sentenced for the offences punishable under Section 6 of the PoCSO Act and Section 342 of the Indian Penal Code, 1860 .( IPC )

2. The prosecution case is that on 28.06.2016 at about 03:45 PM at A-215, V.P. Singh Camp Railway Colony, Tuglakabad, New Delhi, the appellant/accused wrongfully confined PW1, the daughter of PW7, a minor girl aged about 9 years, in his clinic and committed aggravated penetrative sexual assault upon her.

3. On the basis of Ext. PW7/A FIS of PW7, given on 28.06.2016, crime no. 198/2016, Prahladpur Police station, that is, Ext. PW13/A was registered by PW13 Woman Sub-Inspector (WSI). PW13 conducted investigation into the crime and on completion of the same filed the charge-sheet/final report alleging commission of offences punishable under Sections 342 and 376 IPC and Section 6 of the PoCSO Act.

4. When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him as contemplated under 207 Cr.PC. After hearing both sides, the trial court as per order dated 02.02.2017 framed a charge under Section 342 IPC and Section 6 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs.1 to 14 were examined and Exts. PW1/A-B, PW2/A-D, PW4/DA, PW5/A-B, PW6/A-B, PW7/A, PW10/A, PW11/A-C, PW 12/A-C, PW13/A-C, PW14/A were marked in support of the case.

6. After the close of the prosecution evidence, the accused was questioned under Section 313 Crpc regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. He submitted that he had been falsely implicated in this case due to monetary disputes he had with PW7.

7. After questioning the accused under Section. 313 CrPC, compliance of Section 232 CrPC was mandatory. In the case on hand, no hearing as contemplated under Section 232 CrPC is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply the same is shown to have resulted in serious and substantial prejudice to the accused (See Moidu K. vs. State of Kerala , 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Section 232 Cr.P.C has caused any prejudice to him. No oral or documentary evidence was adduced by the accused.

8. Upon consideration of the oral and documentary evidence on record and after hearing both sides, the trial court, vide the impugned judgment dated 17.01.2025 held the accused guilty of the offences punishable under Section 342 IPC and Section 5(m) of the PoCSO Act and hence sentenced him to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 6 of the PoCSO Act and to a fine of ₹ 1,000/-, and in default of payment of fine, to undergo simple imprisonment for two months, and to rigorous imprisonment for 06 months for the offence punishable under of . The sentences have been directed to run concurrently. Aggrieved, the accused has preferred this present appeal.

9. It was submitted by the learned couns