HAZARI PASWAN Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) The appellant - Hazari Paswan impugns a judgment dated 17.10.2015 of learned Addl. Sessions Judge in Sessions Case No. 107/2014 arising out of FIR No. 280/2014 PS North Rohini whereby he was convicted for committing offence punishable under Sec. 10 of POCSO Act (In short 'Act'). By an order dated 02.11.2015, he was sentenced to undergo RI for five years with fine Rs. 5,000.00.

(2.) Briefly stated, the prosecution case as reflected in the charge-sheet was that on 30.04.2014, at about 12.00 noon to 12.30 p.m., at House No. 174, Second floor, Village Nahar Pur, Delhi, within the jurisdiction of PS North Rohini, the appellant committed rape upon the prosecutrix 'X' (assumed name) aged around five years; he also inserted his hand in the victim's vagina. The occurrence conveyed to PCR at 1.09 p.m. by one Mukesh Kumar was reduced into writing (Ex.PW-2/A). DD No. 23A (Ex.PW-3/A) came into existence at PS North Rohini at 01.15 p.m. The Investigating Officer after recording statement of victim's mother - Durga (Ex.PW-5/A) lodged First Information Report. 'X' was taken for medical examination; she recorded her 164 Crimial P.C. statement. The accused was arrested. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, the appellant was charge-sheeted. In order to establish its case, the prosecution examined thirteen witnesses. In 313 Crimial P.C. statement, the accused denied his involvement in the crime and pleaded false implication due to previous quarrels. The trial resulted in conviction under Sec. 10 of the Act and it is under challenge.

(3.) Appellant's counsel urged that the Trial Court committed material irregularity while recording victim's statement and put various leading questions. It ignored the material infirmities and inconsistencies emerging in the statements of the prosecution witnesses. It overlooked the fact that victim aged about five years was not competent to depose and the statement given by her was at her mother's behest. X's mother did not permit her medical examination to be conducted. 'X' has made vital improvements in her Court deposition. No independent public witness was associated at any stage of the investigation. Learned Addl. Public Prosecutor urged that when the child had gone to appellant's house to watch TV she was sexually assaulted there. No sound reasons prevail to disbelieve the statement of the child witness.