Delhi High Court: In a case wherein an appeal was filed seeking setting aside the judgment dated 18-09-2021 and the order on sentence dated 26-11-2021, passed by the Additional Sessions Judge (FTSC) (POCSO Act)-01, Central District, Tis Hazari Courts, Delhi, whereby the appellant was convicted for the offences punishable under Sections 342, 363, and 376 of the Penal Code, 1860 (‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Amit Bansal, J.*, held that mere absence of injuries could not be a ground to hold that penetrative sexual assault did not take place. Thus, the Court dismissed the appeal and held that there was no infirmity in the impugned judgment of the Trial Court convicting the appellant for the offences under Sections 342, 363, and 376 of the IPC and Section 6 of the POCSO Act.
The victim, a girl child, was playing in the street outside her house and when the victim’s mother could not find her, she sent her husband to look for her. The victim’s father reached the appellant’s house, who was their neighbour and knocked at the door which was locked from inside. He also called for the victim but there was no response. The victim’s father, after some time, again went to the appellant’s house, called for the victim, and received her response from inside the door. After a couple of minutes, the appellant dressed in his underwear opened the door and the victim was found present inside the room. The victim’s father brought the victim back to their house and told his wife about the incident. The victim then informed her mother that the appellant took the victim to his house, gave her ‘Mango Frooti’ and after removing her underwear, inserted his finger inside her private parts.
Thereafter, the victim’s parents informed the police about the incident and the police based on the statement of the victim’s mother registered the FIR under Section 376 of the IPC and Sections 4 and 6 of the POCSO Act. The victim’s statement under Section 161 of the Criminal Procedure Code, 1973 (‘CrPC’) was also recorded and the appellant was sent for his medical examination. The appellant was arrested on 12-06-2017 and subsequently, the charge sheet was filed. The Sessions Court, after examining the witnesses, analyzing the evidence, and hearing the arguments, convicted the appellant for the offences under Sections 342, 363, and 376 of the IPC and Section 6 of the POCSO Act.
Analysis, Law, and Decision
The Court noted that in the victim’s statement recorded by the police under Section 161 of the CrPC and the statement given by the victim and her mother to the doctor before the MLC, the victim had clearly stated that the appellant had inserted his finger inside her private parts. In her deposition during trial, the victim deposed that the appellant took her to his house and took off her underwear and inserted his finger in her private parts. The victim further stated that she felt pain as well. The Court further noted that the victim had also identified the appellant in Court.
The Court noted that while examining the victim, the Trial Court concluded that the victim could understand the questions being put to her and give rational answers. The Court opined that the Trial Court had correctly observed that the victim was young at the time of the incident and minor contradictions could not be a ground to disbelieve her testimony.
The Court relied on Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, wherein it was held that the conviction could be based on the sole testimony of the prosecutrix when the deposition was found to be trustworthy and credible, and no independent corroboration was required for the same. This Court opined that the victim’s statement was reliable and trustworthy and had also withstood cross-examination on this aspect.
The Court took note of the appellant’s contention that there were no injuries on the private parts of the victim and thus, opined that the Trial Court had correctly observed that injury on the private parts in cases of sexual offences depends on various factors such as depth of insertion, among others. Thus, the Court opined that it was not necessary that in every case there would be an injury caused. Therefore, the Court held that mere absence of injuries could not be a ground to hold that penetrative sexual assault did not take place.
The Court opined that under Section 29 of the POCSO Act, there was a statutory presumption raised against the accused in respect of offences under Sections 3, 5, 7 and 9 of the POCSO Act and in the present case, the appellant had failed to successfully rebut the aforesaid presumption by leading evidence or discrediting the evidence of the prosecution. The Court further opined that the appellant had not been able to shake the version of the prosecution and the prosecution had successfully proved its case beyond reasonable doubt.
Thus, the Court dismissed the appeal and held that there was no infirmity in the impugned judgment of the Trial Court convicting the appellant for the offences under Sections 342, 363, and 376 of the IPC and Section 6 of the POCSO Act.
[X v. State (NCT of Delhi), 2023 SCC OnLine Del 4867, decided on 14-08-2023]
*Judgment authored by: Justice Amit Bansal
Advocates who appeared in this case :
For the Appellant: Gautam Khazanchi and Vaibhav Dubey, Advocates;
For the Respondent: Pradeep Gahalot, APP for the State.