AKHILESH ARYA Vs. STATE

JUDGEMENT

(1.) Vide this appeal under Sec. 374 Cr.P.C read with Sec. 482 Cr.P.C, the appellant is assailing the judgment dtd. 22/2/2018 ("impugned judgment" in short) passed by Ld. ASJ-01, West, Special Judge under Protection of Children from Sexual Offences Act, 2012. ("POCSO Act" in short), Tis Hazari Courts, Delhi, whereby the appellant was convicted for the offence under Sec. 6 of POCSO Act, in new S.C. No. 56841/2016, in case FIR no. 245/2013, Police Station Uttam Nagar ; and order on sentence dtd. 14/3/2018, whereby the appellant was sentenced to undergo rigorous imprisonment for life under Sec. 6 of POCSO Act with fine of Rs.20,000.00, in default to undergo rigorous imprisonment for one year.

(2.) Briefly stating, the prosecution case is that on 12/5/2013, at about 3.56 pm, an information was received at police station Uttam Nagar regarding a quarrel near Gurudwara, (address withheld), Mohan Garden ; same was reduced into writing by the duty officer PW-1 HC Jagdish in DD register vide DD no. 34-A, which is Ex. PW-1/A. Said DD was handed over to PW9 SI Bhupender who on receipt of same, reached at house no...., (address withheld) Gali no. 6, Mohan Garden, Uttam Nagar, Delhi, where he was informed by the public person that the prosecutrix and her mother had been taken to the police station by PCR Van. PW-9 SI Bhupender then returned to the police station, where he met the prosecutrix PW-4 and her mother/PW2, who told him about "galat kaam" with the prosecutrix. After bringing the matter to the knowledge of the SHO, PW-9 along with PW-5 lady constable Sarita took the prosecutrix/PW-4 to DDU Hospital, Hari Nagrar, New Delhi for medical examination. In the meanwhile, PW-13 SI Satyawati also reached the DDU Hospital. After getting the prosecutrix/PW-4 medically examined, PW-13 SI Satyawati recorded the statement of PW-2 mother of the prosecutrix as the prosecutrix being 4 years old. Thereafter, PW-13/SI Satyawati accompanied the prosecutrix and her mother/the complainant/PW2 to the place of occurrence and prepared site plan Ex. PW-13/B.

(3.) The appellant has primarily challenged his conviction on the ground that the learned Trial Court failed to appreciate that different versions were given by the PW-4 prosecutrix, that is, by way of alleged narration to her mother PW-2, while giving alleged history to the doctor as recorded in MLC Ex. PW-6/A, in her statement u/s 164 Cr.P.C and in her deposition before the Court as PW-4. Ld. Counsel argued that in the statement of complainant/PW-2/mother of the prosecutrix, it has come that she was informed by the prosecutrix PW-4 that father of Anisha induced her and took her inside his house on a pretext of meeting her with her friend Cheenu and further told that "unnone meri su su wali jagah mai ungli dali thi" firstly by making her lie down on kitchen slab and then in purple colour room. Even in her statement recorded under Sec. 164 Cr.P.C, prosecutrix/PW-4 mentioned about insertion of finger in her su su wali jagah, which is consistent with the complaint/FIR. Whereas, there is no mention of insertion of finger in MLC. As per the MLC Ex. PW-6/A, the prosecutrix PW-4 as well as her mother PW-2 informed the doctor that the accused fondled the prosecutrix"s private part and then removed his pants and tried rubbing the private part of the prosecutrix with his penis. There is no mention of insertion of finger by the appellant/accused. Rather, there is no mention even of removal of the prosecutrix"s panty by the appellant/accused. In her deposition before the Court as PW-4, prosecutrix deposed only about insertion of penis and stated that "Tau ji ne Nu Nu dali thi" and explained "Nu nu means Jis se shu shu karte hai." There is no mention of insertion of finger by the appellant/accused.