MOHD. WASIM Vs. STATE

JUDGEMENT

(1.) By the present appeal, the appellant challenges the impugned judgment dated 5th December, 2016 convicting him for the offences punishable under Section 10 of Protection of Children against Sexual Offences Act, 2012 (in short 'POCSO Act') and Section 328 IPC and the order on sentence dated 8th December, 2016 directing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for a period of 30 days for the offence punishable under Section 10 of POCSO Act and rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for a period of 30 days for the offence punishable under Section 328 IPC.

(2.) Learned counsel for the appellant submits that no poisonous substance was found to be consumed by victim 'C' on her examination. The delay in lodging of FIR has not been explained. Sompal, the neighbour who called the police, has not been examined as a witness. As per the medical evidence also, hymen was found to be intact and no external injury was found, thus, not fortifying the prosecution case. There are contradictions in the testimony of victim 'C'. Furthermore, FSL report does not support the prosecution case. Since the conviction of the appellant is on the solitary testimony of victim 'C', the same needs to be examined carefully in the light of surrounding circumstances. In the alternative, he further states that the present case is at best a case of sexual assault and not of aggravated sexual assault wherein the minimum punishment is 3 years imprisonment.

(3.) Learned APP for the State on the other hand contends that the present case squarely falls under Section 9 (n) of POCSO Act punishable under Section 10 of POCSO Act. Delay in lodging of FIR was due to circumstances that the victim 'C' was at the mercy of the appellant who was staying in the same house, mother of victim having passed away, father of victim indulging in drinking and her younger brother aged only 4 years. FSL report does not support the prosecution case because the incident was reported after 4-5 days when the victim had already taken bath and had changed her clothes.