1. In this appeal filed under Section 374(2) of Code of Criminal Procedure (the Cr.P.C.), the sole accused in SC No. 182 of 2014 on the file of the Additional Sessions Court, Rohini District Courts, New Delhi, assails the judgment dated 08.12.2015 as per which he has been convicted and sentenced for the offences

punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).

2. The prosecution case, is that on 10.07.2014 at about 02:30 PM, at House No. B-337, Gali No. 2, Prem Nagar-III, Gauri Shankar Enclave, Delhi, the accused attempted to commit aggravated sexual assault on PW12, a minor girl aged approximately 4½ years, by removing her underwear and climbing over her back with the intent to commit a wrongful act on her.

3. Based on Ext. PW11/A FIS/FIR of PW11, the mother of PW12, given on 10.07.2014, crime no. 730/2014, Aman Vihar Police Station, that is, Ext. PW1/A FIR was registered by PW1 Head Constable (HC) alleging commission of the offence punishable under Section 354 IPC. PW14 conducted investigation into the crime and on completion of the same filed the charge-sheet/final report alleging commission of offences

punishable under Sections 511, 354 and 376 IPC and Section 10 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 Section 207 Cr.P.C. After hearing both sides, the trial court as per order dated 29.01.2015 framed a charge under Section 9(m) read with Sections 10 and 18 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-F, PW3/A-D, PW4/A, PW5/A, PW7/A-B, PW8/A, PW11/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(1)(b) Cr.P.C 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 has been falsely implicated in this case.

7. After questioning the accused under Section 313(1)(b) 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 08.12.2015 held the accused guilty of the offence contemplated under Section 9(m)

punishable under Section 10 of the PoCSO Act and hence sentenced him to undergo rigorous imprisonment for a period of 5 years and to a fine of ₹5,000/-, and in default of payment of fine, to undergo simple imprisonment for six months. The sentences have been directed to run concurrently. Aggrieved, the accused has preferred the present appeal.

9. It was submitted by the learned counsel for the appellant/ accused that the prosecution case suffers from serious infirmities as there were no injuries, bruises or abrasions found on PW11, which would ordinarily be expected if she had been forcibly pushed to the ground, as alleged. It was further submitted that there was no evidence of any attempt at penetration or ejaculation as the clothes worn by PW12 was not recovered by the police. The learned counsel also submitted that PW12, being only four and a half years old, was too young to accurately comprehend