Delhi High Court
Mukesh Kumar vs State (Nct Of Delhi) on 12 November, 2021
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12th November, 2021
+ CRL.A. 88/2021
MUKESH KUMAR ..... Appellant
Represented by: Ms.Inderjeet Sidhu, Advocate
(DHLSC) with Mr.Jai Prakash,
Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Represented by: Mr.Tarang Srivastava, APP for State
with SI Sunil, PS Nangloi.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present appeal, appellant challenges the judgment dated 5th
September, 2020 convicting the appellant for offence punishable under
Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in
short 'POCSO Act') as also the order on sentence dated 1st October, 2021
awarding him sentence of rigorous imprisonment for a period of ten years
and to pay a fine of ₹10,000/- (Rupees ten thousand only), in default
whereof to undergo simple imprisonment for a period of one month and to
pay a compensation of ₹25,000/- (Rupees twenty five thousand only) to the
victim and in default whereof to undergo simple imprisonment for a period
of two months.
2. Learned counsel for the appellant contends that as per the statement of
the prosecutrix recorded under Section 164 Cr.P.C. no penetrative sexual
assault took place and the statement made by her in the Court was an
improvement. The child being of tender age could not contemplate the
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distinction between a penetrative sexual assault and touch. On a perusal of
her statements, the appellant cannot be convicted for offence punishable
under Section 6 POCSO Act. Appellant has also taken the plea of false
implication which was not considered by the learned Trial Court. Further
the version of the minor victim is also not corroborated by the MLC. Even
if the statement of the prosecutrix is to be believed in totality at best an
offence defined under Section 9 punishable under Section 10 of POCSO Act
is made out for which the minimum sentence prescribed is five years which
may extend to seven years. The appellant has now been in custody for more
than five years imprisonment with no interim bail in between and hence he
be released on the period already undergone. The appellant is a young boy
aged 19 years. Conduct of the appellant in the jail is satisfactory and he has
no criminal antecedents.
3. FIR No.362/2016 was registered at PS Nangloi, Delhi for offence
punishable under Section 376 IPC and Section 6 of POCSO Act on the
statement of the minor victim aged five years who stated that her parents
were residing as tenants and she was studying in the school. Her mother
works at home whereas her father runs a barber shop. The appellant resided
in the adjoining room. One day when it was Sunday, she was playing in his
room. Mother of the appellant was outside the room. The appellant
ejaculated on her clothes thereafter he took off her underwear and put his
organ into from where she urinates due to which she had pain. When she
said that she had to go home appellant stated that she should not tell this to
anybody. Thereafter, one day she did not know that the appellant was alone
in his room when he again took off her underwear and ejaculated inside her
underwear. He put on her underwear and she came back to her room. She
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did not tell her mother as she felt that her mother would beat her. On that
date her brother stated that lets go to the house of the appellant for studying
on which she stated to her brother that she would not go to the appellant as
he does wrong acts. Her mother was in the kitchen who heard her say so.
Thereafter, her mother asked her what was the wrong act done by the
appellant, on which she told her mother everything. Thereafter her father
called the police. MLC of the prosecutrix was conducted on the same date
wherein she stated that the appellant removed her underwear and put his
penis into her underwear and ejaculated on her chest twice one week back.
He also threatened not to tell anyone. Because the MLC notes no vaginal,
oral or anal intercourse, learned counsel for the appellant contends that no
case for offence punishable under Section 6 POCSO Act is made out.
4. Statement of the victim was recorded under Section 164 Cr.P.C. on 7th
August, 2016 wherein she stated that appellant resided in the adjoining room.
He took off her underwear, pressed her, told her not to tell her mother and
that she should say that he was getting her cursive writing done. She further
stated that he also did toilet on her, thereafter wiped it and that he asked her
to hold his penis.
5. In her deposition before Court the prosecutrix on 28th March, 2018
who had attained the age of seven years stated that at the time of incident
she was studying in UKG and that day she had gone to the appellant to do
cursive writing. She had gone to the appellant's house all alone when the
appellant asked her to play which she did not understand. Thereafter,
appellant took off her underwear as also his own and started doing
something. He ejaculated on her stomach and wiped it. She did not tell this
to anybody in the house as the appellant had told her not to say so. After a
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few days she again went to his house with her brother. Initially she was
sitting with her brother thereafter she got separated as her brother and
another boy started playing with the toys. The appellant called her inside
and made her sit with him. She further stated that the first time the appellant
took off her underwear and inserted his penis into her vagina and second
time he ejaculated on her stomach.
6. Considering the fact that the victim was of tender age of five years as
proved by the prosecution from the school certificate the prosecutrix was
consistent in her version that two incidents took place and in one incident
the appellant inserted his penis in the vagina of the prosecutrix which she
explained in her own language that "usne apni susu karne wali jagah meri
susu karne wali jagah me dali thee" and second time he ejaculated on the
stomach which she expressed as "mere uppar toilet kar diya tha". In the
MLC without noting the entire sequence of events if the doctors had noted
no history of vaginal, anal or oral intercourse, the same would not be a
reason to discard the consistent version of the prosecutrix.
7. In his statement under Section 313 Cr.P.C. the appellant had stated
that he had been falsely implicated as his family had a quarrel with the
family of the victim regarding the use of the bathroom in their premises.
This was put to the prosecutrix in cross-examination who clarified that when
police came, her parents and the appellant had a quarrel however, before that
there was no quarrel.
8. Mother of the prosecutrix also appeared in the witness box as PW-2
and deposed what was stated to her by the prosecutrix on her asking.
9. Considering the statement of the prosecutrix which is consistent
except that in her statement under Section 164 Cr.P.C. she did not elaborate
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the two incidents but specifically stated so in the statement on the basis of
which FIR was registered as also before the Court, this Court finds no error
in the impugned judgment convicting the appellant for offence punishable
under Section 6 POCSO Act or the order on sentence.
10. Appeal is dismissed.
CRL.M.B.183/2021
1. Application is disposed of as infructuous.
2. Order be uploaded on the website of this Court and be also conveyed
to the appellant through Superintendent, Jail.
(MUKTA GUPTA)
JUDGE
NOVEMBER 12, 2021
'vn'
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Signing Date:17.11.2021
13:35:08
