CRL.A.114/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Decided on: 19^th May, 2022

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CRL.A.114/2020

MUKISH

..... Appellant

Represented by:

Ms.Inderjeet Sidhu, Advocate

(DHCLSC).

versus

STATE

..... Respondent

Represented by:

Mr.Tarang Srivastava, APP for

the State with SI Yogesh

Tanwar, PS Badarpur.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

HON'BLE MS. JUSTICE MINI PUSHKARNA

MINI PUSHKARNA, J. (ORAL)

CRL.M.A. 9812/2022 (Exemption)

1.

Exemption allowed subject to just exceptions.

2.

Application is disposed of.

CRL.A. 114/2020

1.

The present is an appeal under Section 374(2) read with Section

383 of Cr.P.C. challenging the Judgment dated 28^th November, 2019

and order on point of sentence dated 29^th November, 2019 passed by

Sh. Gaurav Rao, learned Additional Sessions Judge-01 (POCSO),

South-East District, Saket Courts, New Delhi.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002299

CRL.A.114/2020

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2.

The appellant was convicted for the offence punishable under

Section 6 of The Protection of Children from Sexual Offences Act,

2012 (herein referred to as ‘POCSO Act’), and awarded sentence of

Imprisonment for life along with fine of Rs.10,000/- ; in default of

payment of fine, the Trial Court has further awarded sentence of

Simple Imprisonment for a period of one month, for the said offence.

3.

In the present appeal the main challenge to the impugned

judgment of the learned Trial Court is on the ground that the

prosecution has not been successful in establishing the guilt of the

appellant in respect of offence punishable under Section 6 of the

POCSO Act. Learned counsel for the appellant has contended that the

testimony of the prosecution witnesses did not inspire any confidence

and no conviction or sentence can possibly be awarded on the basis of

such evidence. She further argued that the witnesses, PW1 i.e. the

mother of the victim, and PW3 i.e. father of the victim, had not

supported the case of the prosecution and have deposed in favour of

the appellant. Learned counsel for the appellant referred to the cross-

examination dated 3^rd May, 2016 of PW1 and cross-examination of

PW3 to contend that the said witnesses who were the parents of the

victim had turned hostile and had rather deposed in favour of the

appellant. Further, even the victim was not examined, which was fatal

to the prosecution case.

4.

Learned counsel for the appellant further challenged the

sentence awarded to the appellant vide order dated 29^th November,

2019 passed by the learned Trial Court and prayed for leniency by

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002299

CRL.A.114/2020

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reducing the sentence awarded to the appellant. For this purpose, she

relied upon three judgments viz. T.K.Gopal vs. State of Karnataka,

344 (DB). It is submitted that there were mitigating circumstances in

favour of the appellant for considering his case for reduction of

sentence. She argued that the appellant had clean antecedents; was 35

years of age at the time of offence; he was married and his wife and

six children were dependent on him, the appellant being the sole bread

earner. She further argued that the jail conduct of the appellant was

satisfactory and on path of the reformation. Thus, she prayed for

reduction in the sentence awarded to the appellant.

5.

Allegations against the appellant are that he committed

aggravated penetrative sexual assault upon baby ‘M’ on 14^th March,

2014, at about 10.00 PM at a house in Badarpur, New Delhi. Vide

order dated 11^th July, 2014, charge for offence punishable under

Section 6 of the POCSO Act was framed against the accused Mukish,

appellant herein. In all 15 witnesses were examined by the

prosecution.

6.

As per the deposition of PW1, mother of the victim, she along

with her husband and two children, including her daughter, a