Mr. Rohan J. Alva and Mr. Anant Sanghi, Advocates v. STATE

Judgment

1. The present appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 by the appellant challenging the judgment of conviction dated 29.08.2023 and the order on sentence dated

13.12.2023 passed by, ASJ-06 (East), Special Judge (POCSO),

Karkardooma Courts, Delhi, in S.C. No. 2973/2018, arising out of FIR No. 85/2018 registered at P.S. Krishna Nagar, Delhi under Section 354 IPC and Section 8/12 of the POCSO Act. Vide the impugned judgment, the appellant was convicted for the offence under Section 10 read with Section 9(m) of the POCSO Act as well Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:15.09.2025 12:44:03 CRL.A. 423/2024 as under Section 354 IPC. By the order on sentence, for conviction under Section 10 read with Section 9(m) of POCSO Act, the appellant was directed to undergo Rigorous Imprisonment (R.I.) for a period of 6 years with fine of Rs.5,000/-, in default whereof he was directed to further undergo Simple Imprisonment (S.I.) for a period of one month. For the offence under Section 354 IPC, he was sentenced to undergo RI for a period of 5 years with fine of Rs.2,000/-, in default whereof he was directed to further undergo S.I. for a period of 15 days. Both the sentences were directed to run concurrently. The benefit of Section 428 Cr.P.C. was extended to the appellant.

2. The investigation commenced on 16.04.2018, when a PCR call was received at the police station regarding a wrong act committed on a minor girl aged six years. The same was recorded as DD No. 27A and assigned to SI Anugrah who, alongwith Ct. Tanveer and W/Ct. Monika went to the place of incident and met father of the child victim (complainant). He alleged that his daughter had gone to play on the terrace and when she returned around

5.00 p.m., she disclosed that the appellant, who was their neighbour, had caught hold of her and licked her on her body parts. The appellant was apprehended at the instance and on identification of the complainant from the spot. The victim was medically examined on the same date and her statement under Section 164 Cr.P.C. was recorded on 19.04.2018 wherein she stated that one day when she was playing with „A‟, the appellant who was her neighbor took her downstairs. She said „raju mujhe chaatne lag gaya.’ The Court has observed that the child victim had pointed out that the appellant had kissed her cheeks and chest. After investigation, a charge- sheet was filed against the accused under Section 354 IPC read with Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:15.09.2025 12:44:03 CRL.A. 423/2024 Sections 8 and 12 of the POCSO Act.

3. Vide order dated 22.04.2019, charges were framed against the accused for the offences punishable under Section 10 read with Section 9(m) of the POCSO Act and Section 354 IPC, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined seven witnesses, including the child victim who was examined as PW1. The father of the victim, who is also the complainant, was examined as PW2. Dr. Yamini, SR (Gynae), SDN Hospital, who proved the MLC of the victim, was examined as PW5. The rest of the witnesses were formal in nature and deposed about the various aspects of investigation. In defence, the statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all allegations and claimed false implication owing to enmity between the complainant and his landlord. He did not lead any defence evidence.

4. Learned counsel for the appellant contends that the appellant is innocent and has been falsely implicated in the present manner. It is submitted that the victim‟s testimony is tutored and is contradictory to the deposition of her father as to the time of the incident. It was further urged that the prosecution failed to examine material witnesses, namely the mother of the victim. though she was the first person to whom the incident was disclosed and the child “A” who was allegedly present with the victim at the time of occurrence. The non-examination of these material witnesses has adversely affected the case of the prosecution. Reliance in this regard is placed on the decision of the Supreme Court in Parminder Kaur v. State of Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:15.09.2025 12:44:03 CRL.A. 423/2024 Punjab. 1 Further it was contended that, Dr. Yamini deposed that there were no external fresh injuries on the victim, and that the mother had refused internal medical examination of the child victim. The prosecution witness W/Ct. Monika (PW4) who was part of the team of police officials which arrested the appellant did not even remember the name of the appellant and other material facts till she refreshed her memory. It is further submitted that the family of the child victim had prior enmity with the appellant due to him taking side of his landlord in a dispute between the said landlord and the child victim‟s family.

5. On the other hand, learned APP for the State, assisted by learned counsel for the complainant, supported the impugned judgment. It was submitted that the testimony of the victim, recorded after a competency assessment, is cogent and trustworthy. PW-2, the father of the victim, corroborated her version by deposing that the child returned crying and narrated the incident immediately. The FIR was lodged promptly, the accused was apprehended from the spot, and the medical examination recorded the history of molestation. It was submitted that minor inconsistencies are natural given the tender age of the victim, but the core of the prosecution case remains unshaken. Further he submitted that the victim was cross-examined about 5 years from the date of the incident.

6. The prosecution case primarily hinges around the testimony of the child victim. The competence of a child witness and its evaluation by the Court has been the subject matter of many decisions. The Supreme Court in Dattu Ramrao Sakhare v. State of Maharashtra2, observed as under: