AMIT KUMAR Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The present appeal has been preferred assailing the judgment of conviction dtd. 31/1/2020 and the order on sentence dtd. 4/2/2020 passed by the learned Special Judge (POCSO Act)/ASJ-05 (Central), Tis Hazari Courts, Delhi, in Sessions Case No. 628/2017 arising out of FIR No. 172/2017 registered at P.S. Kamla Market. By way of the impugned judgment, the appellant was convicted for the offences punishable under Sec. 6 POCSO and Ss. 376/506 IPC. He was, however, acquitted of the offence under Sec. 366 IPC. Vide the impugned order on sentence, the appellant was sentenced to undergo RI for a period of 15 years along with payment of fine of Rs.5,000.00, in default whereof he would undergo SI for 6 months, for the offence punishable under Sec. 6 POCSO. Additionally, the appellant was sentenced to undergo RI for a period of 2 years along with payment of fine of Rs.2,000.00, in default whereof he would undergo SI for 6 months, for the offence punishable under Sec. 506 IPC. Both sentences were directed to run concurrently and the benefit under Sec. 428 Cr.P.C. was extended to the appellant.

(2.) The case of the prosecution, as culled out from the complaint, is that the same was lodged on 8/7/2017 on the statement of the child victim, aged about 9 years. The child victim stated that on 7/7/2017 at about 8:00 p.m., she was going to the open gym park near her house to bring home her two younger sisters who had gone out to play. The appellant, whose kids were also playing in the park, was also going there to bring them back, and the child victim accompanied him. In the park, the appellant made the child victim sit on his lap, lowered her underwear, and inserted his finger into her private parts. When the child victim felt pain, she cried out; however, there was nobody immediately around them as the other children were playing at some distance. The appellant threatened the child victim not to tell anyone about the incident, otherwise he would burn her, and the child victim got scared. On returning home, when her parents asked why her underwear had blood spots on it, she initially stated that she had been hurt by a swing; however, she later told her mother that the appellant had inserted his finger into her vagina, and the mother thereafter informed the child victim's father. The matter was then reported to the police, leading to registration of the subject FIR. Upon completion of the investigation, the chargesheet was filed, and charges were subsequently framed against the appellant under Sec. 6 POCSO and Ss. 366/376/506 IPC, to which he pleaded not guilty and claimed trial.

(3.) The prosecution examined 11 witnesses in support of its case. The child victim herself was examined as PW-2. Her father and mother were examined as PW-4 and PW-5 respectively. The principal of the school that the child victim was attending at the time was examined as PW-6 to establish the child victim's age. Dr. Neelam Yadav, who conducted the medical examination of the child victim and proved her MLC, was examined as PW-3. Dr. Rajkumar (PW-7) medically examined the appellant, collected his samples, and prepared his MLC on 9/7/2017; he further conducted the appellant's potency test on 10/7/2017, wherein he opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Dr. Sarabjit Singh, Sr. Scientific Officer, FSL, Rohini, was examined as PW-8. The I.O. of the case, Inspector Lalita Rawat (PW-10), deposed as to various aspects of the investigation carried out by her. The remaining witnesses are police officials whose testimonies were largely formal in nature.