SUNDER Vs. STATE

JUDGEMENT

(1.) The instant appeal has been filed by Sunder challenging the impugned judgment dated 23rd April, 2015 whereby the appellant has been convicted for the offence punishable under Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short ,,POCSO Act) in FIR No. 146/2013 registered at PS Ashok Vihar and the order on sentence dated 1st May, 2015 directing him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/ - in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 8 of POCSO Act.

(2.) The prosecution case is that on 17th May, 2013 around 6:13 PM, DD No. 23A was received with respect to eve teasing at Jailorwala Bagh. The aforesaid DD entry was handed over to SI Ram Kumar PW -11. He along with Ct Amit PW -5 reached the spot and found Smt. Nisha PW -6 along with two girls i.e. victim children ,,M and ,,N. PW -11 brought them to the police station and handed over the victim children and the lady to W/SI Rajesh PW -10. PW -10 recorded the statement of ,,N PW -3 aged 12 years who stated that her mother passed away after she was born and she used to work in the houses. She stayed with Nisha PW -6 who had a 11 years old daughter, the victim child ,,M PW -7. PW -3 further stated that when she along with PW -7 used to come back in the evening after work, one dark complexioned boy aged 25 years use to follow them (peeche lag jata tha) since past three days. PW -3 further stated that on 15th May, 2013 around 5:00 P.M., the appellant held her hand near the dustbin, pulled her and asked her to sit in the car. PW -3 bit his hand and escaped from there and informed Nisha about it. PW -3 further stated that on the same day at night, when ,,M was sleeping on the roof, the appellant fondled with his hands her chest/breast, thighs and removed her pants/leggings till the thighs, on which PW -7 screamed and the appellant left. PW -3 further stated that on 16th May, 2013 when she along with PW -7 had gone to call the bangle seller, the appellant came and started making obscene gestures and said "mere naam ki chudiyan pehen le". PW -6 Nisha saw all this and called back both the children. PW -3 stated that on 17th May, 2013, in the evening when she along with PW -6 Nisha and PW -7 were returning back from work, the appellant was standing near Rahuls shop. Both the victim children pointed out towards the appellant who tried to run away. However, the appellant was apprehended by the public persons and police was called. On the basis of the statement of PW -3, FIR Ex. PW -2/A was registered for the offence under Section 7 punishable under Section 8 of POCSO Act and Section 354 IPC.

(3.) Learned counsel for the appellant contends that there is an unexplained delay in recording of the FIR. There was previous animosity between PW -6 Nisha and the sister of the appellant, Guddu as a result of which the appellant has been falsely implicated in the present case. Further, it was contended that there were a number of public persons present but no one was cited. It was also pointed out that the learned Trial Court failed to appreciate that the appellant was arrested from Jailer wala Bagh and not from the spot. Furthermore, the appellant had produced two witnesses but the evidence of the defence witnesses was not appreciated by the Learned Trial Court. There was no reference to the dustbin incident in the statement of victim child ,,M recorded under Section 164 Cr. P. C. Learned counsel for the appellant further contends that there was no previous complaint against the appellant and there being material contradictions and improvements in the testimony of the three witnesses, he is entitled to be acquitted.