OMKAR DUBEY Vs. STATE

JUDGEMENT

(1.) By this appeal, the appellant assails the judgment dtd. 1/5/2019 convicting him for offence punishable under Sec. 6 POCSO (Prevention of Children from Sexual Offences) Act and order on sentence dtd. 16/5/2019 sentencing the appellant to rigorous imprisonment for life along with a fine of Rs.50,000.00 (one year simple imprisonment in default of payment). The Incident:

(2.) The case of the prosecution is that as per the allegations of the complainant, the appellant had committed penetrative sexual assault upon the prosecutrix (a minor aged about seven years) at a jhuggi, Kirti Nagar, Delhi. As per the prosecution, the mother of the prosecutrix accompanied the prosecutrix to PS Kirti Nagar to make a complaint on 25/8/2013 that on a previous date at about 9:00 pm while giving a bath to the minor daughter she found that the breast of the prosecutrix was swollen. The mother asked her as to what had happened but the daughter did not say anything initially, however, on her mother's persuasion finally told her that their neighbor whom she called 'dada' had called her inside his jhuggi and did "galat kaam" with her and when she started crying, he sent her outside the jhuggi and threatened her that if she disclosed to anyone else he would kill her. SI Surinder Kaur made the endorsement on the complaint and FIR No.289/2013 was registered. Upon the said jhuggi being shown by the prosecutrix and her mother, the appellant who was present at the jhuggi was duly identified and arrested by the Investigating Officer. The IO obtained the school certificate of the prosecutrix which mentioned her date of birth as 1/8/2006. The investigation was later transferred to SI Vandana in September, 2013 who later collected the FSL Report. Charges were framed against the appellant, prosecution examined five witnesses, statement of the appellant was recorded under Sec. 313 Cr.P.C and he led no evidence in defence. Submissions by the Appellant:

(3.) The appellant contended that he had been falsely implicated since he had denied electricity connection to the mother of the prosecutrix who was the neighbour of the jhuggi complex. The appellant further contended through the appeal and arguments led on his behalf by counsel that no other material public witness had identified the appellant nor any public witness was involved at the time of arrest of the appellant. Statement of the mother of the prosecutrix was contradictory since the prosecutrix had stated that the appellant had not pressed her chest. MLC of the prosecutrix showed that there was no fresh external injury seen over the body at the time of the examination. While the prosecutrix had stated that she was aware that electricity connection was taken in their house from the house of the appellant, the mother had denied the same and, therefore, was an unreliable witness. The appellant contended that the prosecution had failed to prove the age of the prosecutrix since the school principal testified that the age had been entered on the basis of the affidavit given by the complainant and since no birth certificate was submitted, the learned Trial Court should have given the benefit of doubt to the appellant. It was further contended that since the brothers of the victim were present in the house when the appellant allegedly visited the house of the prosecutrix to take her, prosecution had not examined these material witnesses. Nor was the wife of the appellant examined who was allegedly present when the appellant took the prosecutrix to his house. It was further contended that the medical report of the victim did not corroborate the prosecution's case since it reported that the hymen of the child victim was partially torn and no fresh injuries were seen indicating that the hymen was torn recently but could have been due to some physical activities prior in time. The doctor who prepared the MLC was never called in court and, therefore, the MLC could not be relied upon. As per the IO, the complainant had come to the police station on 25/8/2013 at about 7:00 pm whereas the complainant had testified that she had gone in the morning to the police on that day. Moreover, the victim's statement recorded under Sec. 164 Cr.P.C. mentions that there was no rectal insertion and as regards the vaginal penetration, the MLC did not indicate such. Since no semen was detected in the vaginal swab, the rectal swab and the underwear (Ex. 1, 2 and 3) the prosecution's case was only based on the sole testimony of the prosecutrix. Submissions by the Prosecuion: