BANIYA @ RAJU Vs. STATE (GNCT OF DELHI

JUDGEMENT

(1.) The present appeal has been instituted against the judgement of conviction dtd. 16/3/2022 and order on sentence dtd. 5/5/2022 passed by Additional Sessions Judge-06 (POCSO Court, South-East) Saket, New Delhi in the case arising out of FIR No. 516/2016 registered under Ss. 376 IPC and Ss. 4/6/8 of the POCSO Act at P.S. Jaitpur, Delhi. Vide the impugned judgement, the appellant was convicted for the offence under Sec. 366/376 (2) (i) & (l) of IPC and under Sec. 5 (k) & (m)/ 6 of POCSO Act. Vide the order on sentence, the appellant was directed to undergo rigorous imprisonment for a period of 12 years for the offence punishable under Sec. 376 IPC, along with payment of a fine of Rs.1,000,.00 in default of payment, he was directed to undergo simple imprisonment for a period of 1 month. He was further directed to undergo rigorous imprisonment for a period of 12 years for the offence punishable under Sec. 6 of POCSO, along with payment of a fine of Rs.1,000,.00 in default of payment, he was directed to undergo simple imprisonment for a period of 1 month. Additionally, he was sentenced to undergo rigorous imprisonment for a period of 5 years for the offence punishable under Sec. 366 IPC, with a fine of Rs.1,000,.00 in default thereof, to undergo simple imprisonment for 1 month. All the sentences were to run concurrently. The benefit of Sec. 428 Cr.P.C. was also to be given to the appellant.

(2.) The facts, in a nutshell as narrated in the complaint to the SHO, P.S. Jaitpur, Delhi by the victims younger sister 'P' (PW5), are that on 9/9/2016, around 6:00 PM, the victim 'K' had left her home statedly to look for her father. When she did not return for some time, 'P' sister (PW5), who was in seventh grade, became concerned and began searching for her. While looking around, she came upon a crowd gathered outside the appellants house. Upon inquiring about her sister, she was told that the victim was locked inside the appellants residence. 'P' looked through the window and witnessed the appellant committing ,,galat kaam with her sister whose clothes had been removed. She alongwith the other neighbours forced the door open and took the child victim and the appellant out of the room. The child victim narrated to her that when she had gone outside to search her father, the appellant took her from the street to his room, removed her clothes and committed galat kaam with her. The appellant attempted to escape but was apprehended and beaten by the public. PW5 then helped her sister put on clothes. The FIR was lodged in the early hours of 10/9/2016 around 2.50 A.M.

(3.) The statement of child victim was recorded under Sec. 161 CrPC on 10/9/2016 wherein she stated that on 9/9/2016 her mother was not at home and her father had gone somewhere. When she went outside to look for him, she found the appellant standing in a gali around 6.00 pm. She asked him if her dad was at his home, to which the appellant said yes and took her there, holding her hand. He removed her and his clothes, laid down on her, pressed her chest and committed rape on her. He also put his penis in her mouth and put his spit on her vagina. Though she resisted, he did not let go. Then her sister 'P' got the door opened with help of public, whereafter the appellant was apprehended. The statement of the child victim under Sec. 164 of the Cr.P.C. was recorded on 16/9/2016 which was on similar lines. She deposed as to the appellant taking her to his house, removing both their clothes, kissing her, laying down on top of her, pressing her chest, putting his spit on her vagina.