DURGESH JHA Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) Challenge in this appeal is a judgment dated 16.03.2015 of learned Additional Sessions Judge in Sessions Case No.101/13 emanating from FIR No.241/13 registered at Police Station Aman Vihar by which the appellant-Durgesh Jha was held guilty for committing offences punishable under Sections 6 and 10 of POCSO Act (hereafter referred to as 'the Act') and Section 506 IPC. By an order dated 23.03.2015, the appellant was sentenced to undergo Rigorous Imprisonment for ten years with fine Rs. 20,000/- under Section 6 of the Act and Rigorous Imprisonment for ten years with fine Rs. 10,000/- under Section 10 of the Act. The sentences were to run concurrently.

(2.) Briefly stated the prosecution case, as reflected in the chargesheet, was that on 01.01.2013 at house No.O-13, Gali No.1, Prem Nagar II, Delhi-86, the appellant, victim 'X's (changed name) real paternal uncle (chacha), touched her breast and had physical contact with sexual intent. 'X' was aged around 13 years at the time of the incident. In February, 2013 and thereafter at different times at house No.O-13, Gali No.1, Prem Nagar II, the appellant committed penetrative sexual assault on 'X' repeatedly and also criminally intimidated her. The incident was reported to the police on 13.06.2013. 'X' along with her mother went to police station Aman Vihar at about 5.00 p.m. and lodged the complaint (Ex.PW3/A). The Investigating Officer registered the FIR. 'X' was taken for medical examination; she recorded her 164 Cr.P.C. statement. The appellant was arrested; statements of witnesses conversant with the facts were recorded during investigation. The exhibits collected were sent for examination at Forensic Science Laboratory and its reports were collected. Upon completion of investigation, a charge-sheet was filed against the appellant in the court for commission of offences punishable under Sections 376 (2) (f) (i) (j) IPC and Section 6 of the Act. By an order dated 11.9.2013, the appellant was charged for commission of offence punishable under Sections 9(n) of the Act; under Section 5(n) punishable under Section 6 of the Act and under Section 506 IPC. The appellant pleaded not guilty of the charged and claimed trial. In order to establish its case, the prosecution examined 13 witnesses in all. In 313 statement, the appellant denied his complicity in the crime and pleaded false implication due to property dispute. DW-1 (Rajeev Kumar Jha), DWCrl. A.658/2015 Page 3 of 162 (Punita Devi) and DW-3 (Parvati Devi) were examined in defence. The trial resulted in his conviction, as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error to base conviction on the sole testimony of the prosecutrix without any independent corroboration. Counsel urged that there were material discrepancies and infirmities in the statement of the prosecution witnesses. No explanation was offered for inordinate delay in lodging the FIR; no weightage was given to defence witnesses who have spoken about the appellant's innocence. Testimony of DW-1 (Rajeev Kumar Jha) was not taken into consideration to falsify 'X's version if he had accompanied them to the SGM hospital. 'X' has made vital improvements in her deposition before the court. The FSL report did not support the version of the prosecution. No injuries were found on 'X's body during her medical examination. The doctor who had medically examined the prosecutrix was not examined. The learned Additional Public Prosecutor urged that no sound reasons exist to disbelieve the statement of the child witness. She had no ulterior motive to make a false statement against her real paternal uncle. Minor inconsistencies or trivial discrepancies in the statement of the witnesses are inconsequential.