CRL.A. 647/2015

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$~5.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 21.11.2017

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CRL.A. 647/2015

MANOJ

..... Appellant

Through:

Mr. Chetan Lokur & Mr. Nitish

Chaudhary, Advocates.

versus

STATE

.....Respondent

Through:

Ms. Aashaa Tiwari, APP along with

SI Pardeep, PS-Begum Pur, Rohini,

for the State.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

HON’BLE MR. JUSTICE P. S. TEJI

VIPIN SANGHI, J. (ORAL)

1.

The appellant has preferred the present appeal to assail his conviction

under Section 5(k) of the Protection of Children from Sexual Offences Act,

2012, (POCSO) and consequent punishment under Section 6 of the said Act,

vide judgment dated 03.12.2014 in Sessions Case No.114/2013 arising out

of FIR No.157/2013 registered at PS–Begum Pur. By the order on sentence

dated 10.12.2014, the appellant has been sentenced to life imprisonment

with fine of Rs.10,000/-, and in default of payment of fine, to undergo

further Simple Imprisonment of six months.

2.

The submission of Mr. Lokur, learned counsel for the appellant is that

the victim child G was, indisputably, a person with mental disability. This

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finding is not disputed by the appellant. Though the age of the prosecutrix

was mentioned as 19 years in the medical examination report, as well as in

the complaint/ statement made by the complainant under Section 161

Cr.P.C., learned counsel for the appellant also does not dispute the fact that

she was below the age of 18 years, as medically opined on record.

3.

The only submission that Mr. Lokur has pressed is that the offence

proved against the appellant is not one falling under Section 5(k) inasmuch,

as, it has not been proved that the appellant had committed penetrative

sexual assault on the prosecutrix.

4.

The expression “Penetrative sexual assault” is defined in Section 2(f)

of POCSO to have the same meaning as given to it in Section 3. Section 3

of the said Act reads as follows:

"penetrative sexual assault" if—

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other person.”

5.

Mr. Lokur has read the testimonies of the prosecutrix G (PW-1), the

niece (sister’s daughter) of the prosecutrix, who is named as C (PW-2), and

the complainant Roshan Khatun (PW-6)/ elder sister of the prosecutrix, to

submit that neither of them have claimed penetration by the appellant falling

in either of the clauses (a) to (d) of Section 3.

6.

The prosecutrix (PW-1) in her statement had, inter alia, stated:

“

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identified the accused Manoj).”

7.

PW-2, the child ‘C’ had, inter alia, stated:

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ped (tree) hai.”

8.

Mr. Lokur submits that in her statement recorded under Section 161

Cr.P.C., the complainant (PW-6) had not alleged penetrative sexual assault

by the appellant. She had, inter alia, stated that:

aayi to maine dekha ki G mausi ne salwar nikal rakhi thi aur

manoj apni pant ki chain band kar raha tha. So yah baat

pata chalne per maine iske bare mei G se pucha to usne

bataya ki

di tatha apni pant ki chain kholkar mere saath

jabardasti karne ki koshish ki. So mai chillai aur

apni susu karne wale ko meri susu karne wali

jagah mei lagaya va daalne ki koshish ki””

(emphasis supplied)

9.

Similarly, Mr. Lokur has referred to the Rukka (Ex. PW-7/B), which

refers to the medical examination report of the prosecutrix, and only records

about the attempt to commit sexual assault. However, the same does not

record the commission of penetrative sexual assault. The Rukka (Ex. PW-

7/B), inter alia, records:

“Shriman, Duty Officer, Thana Begumpur Delhi Sarkar nivedan

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me Attempt to sexual Assualt tehrir farmaya”

10.

Mr. Lokur submits that the incident took place on 14.05.2013. It was

reported by the complainant on the same day. The medical examination

report of the prosecutrix shows that the same was conducted on 15