Delhi High Court
Ram Preet vs State on 23 December, 2024
Bench: Prathiba M. Singh, Amit Sharma
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd December, 2024
+ CRL.A. 475/2020
RAM PREET .....Appellant
Through: Ms. Manika Tripathy, Mr. Barun Dey
& Mr. Rony John, Advs. (M:98118
31835)
versus
STATE .....Respondent
Through: Mr. Harsh Prabhakar, Adv.
(DHCLSC), Mr. Dhruv Chaudhry, Ms.
Eshita Pallavi and Mr. Adeeb Ahmad,
Advs. for Survivor (M:9999309014)
Mr. Ajay Verma, Ms. Sudha Reddy &
Ms. Bhoomika Uppal, Advs. for
DSLSA (M: 9811098069)
Mr. Ritesh Kumar Bahri, APP with
Mr. Lalit Luthra & Ms. Divya Yadav,
Advs. with SI Nishant, PS Gulabi
Bagh.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
Background:
2. The present appeal has been filed on behalf of the Appellant-Ram Preet
under Section 374(2) read with Section 383 of the Code of Criminal Procedure
(hereinafter, ‘Cr.PC.’) assailing the impugned judgment of conviction and
order on sentence dated 2nd March, 2020 and 6th March, 2020 respectively,
passed by Sh. Mohd. Farrukh, ASJ-05 Special Judge (POCSO Act) Central
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 1 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
District, Tis Hazari Court, New Delhi. The Appellant has been convicted in
Sessions Case No. 812/2017 arising out of FIR No. 113/2017 registered at
P.S. Gulabi Bagh under Sections 376 of the Indian Penal Code, 1860 and
Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter, the ‘POCSO’ Act)
3. Vide the impugned judgment of conviction and order on sentence, the
Appellant has been convicted for offences punishable under Section 376 (2)
(i) of the Indian Penal Code, 1860 and Section 6 of the POCSO Act. The
Appellant has been sentenced to undergo rigorous imprisonment for life for
offence punishable under Section 6 of the POCSO Act along with fine of
Rs.10,000/. In default of the fine, the Appellant has been sentenced to undergo
simple imprisonment for 3 months.
Brief Facts:
4. A complaint was filed on 19th October, 2017 (hereinafter, the
‘complaint’) by the mother of the Survivor that at about 11:00 am on the same
day, her daughter informed her that the Accused who resided on the upper
floor of the house had removed her undergarments and had inserted his finger
in the private parts of her daughter.
5. The daughter of the complainant is a minor who was 3 years of age
when the incident took place. Her date of birth on record is 29th September,
2014.
6. It is further stated in the complaint, that upon receiving the information
from her daughter on 19th October, 2017 at about 11:00 am, the Complainant
went to the Accused and scolded him. Thereafter, she put the survivor to sleep.
However, when the Survivor woke up, she complained of a burning sensation
in her private parts. The mother then dialled the number 100 and the
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 2 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
concerned police officials took the Survivor to Hindu Rao Hospital, Delhi for
a medical examination.
7. On the statement made by the mother of the survivor, an FIR dated 19 th
October, 2017 was registered at the Police Station Gulabi Bagh, Delhi under
Section 376 of the Indian Penal Code, 1860 and Section 3(b)/4 of the POCSO
Act. In the charge-sheet however, Section 6 of the POCSO Act was also added
and the charge was framed vide order dated 6th December 2017, as under:
“I, Kaveri Baweja, Additional Sessions Judge, Delhi do
hereby charge you accused Rampreet S/o Bechu Ram as
under:
That on 19.10.2017 at about 11 AM at H. No. 10642,
Gali No. 6, Pratap Nagar, Delhi, you inserted your
finger into private part of minor prosecutrix ‘D’ [name
of the victim withheld in order to protect her identity and
told to the accused verbally] and committed rape upon
the above named minor Prosecutrix and thereby
committed offence punishable under Section 376 IPC
and within my cognizance. Secondly, on the aforesaid
date, time and place, you inserted your finger into
private part of above named minor prosecutrix aged
below 05 years and thus committed penetrative sexual
assault punishable under Section 4 & 6 of POCSO Act
and within my cognizance. And I hereby direct that you
be tried by this Court for the said charge.”
8. The date of birth of the Survivor was recorded by the authorities as 29th
September, 2014. The birth certificate was exhibited as Ex.PW4/8. The
Accused pleaded not guilty and the trial of the case commenced. The
prosecution examined 8 witnesses – out of which, the Survivor was examined
as PW-2 and her mother was examined as PW-3. The mother and the daughter
were the key witnesses. The statement of the Accused was recorded under
Section 313 Cr.PC. The Trial Court after hearing the arguments convicted the
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 3 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
Accused under Section 376(2)(i) of the Indian Penal Code, 1860 and Section
6 of the POCSO Act. The observations of the Trial Court are set out below:
“30. In view of the aforementioned settled position of
law, the argument of Ld. Counsels for the accused that
no rape has been committed upon the victim is without
any merit when the testimony of the prosecutrix/victim
‘D’ is consistent and the same is corroborated by the
testimony of the mother of the victim. No
material/evidence has been brought by the accused to
show as to why the victim would be interested in falsely
implicating him and therefore in the absence of any
other circumstances to discard her evidence, she cannot
be disbelieved.
31. In view of the aforesaid discussion coupled with the
evidence on record, it is proved that the accused has
committed rape /aggravated sexual assault upon the
victim as she has specifically deposed that she has been
sexually assaulted by the accused and her testimony
stands fortified by the testimony of her mother and her
MLC. Since the prosecution has succeeded in proving
the guilt of the accused of aggravated penetrative sexual
assault with the victim who was aged about 3 ½ years at
the time of the commission of the offence falling within
Sec. 5(m) of the POCSO Act which is punishable u/sec.
6 of the POCSO Act and thus, presumption under
Section 29 of the POCSO Act that the accused has
committed the offence, has to be raised against him. The
accused has failed to rebut the said presumptions either
by discrediting the prosecution witnesses or by leading
any defence evidence to prove that the offence in
question was not committed by him. Thus accused, is
liable to be convicted for the offence punishable U/s 6
of POCSO Act as the accused has committed aggravated
penetrative sexual assault upon the victim girl, and thus
the accused is not being convicted u/sec. 4 of POCSO
Act which is lesser in degree. The prosecution has also
succeded in proving the offence punishable underSignature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 4 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
Section 376 (2) (i) IPC as accused has committed rape
with the victim aged less than 16 years of age.
Accordingly, I hold accused Ram Preet guilty for the
offences u/s 376(2)(i) of IPC & U/s 6 of POCSO Act and
he is convicted accordingly.”
9. The order on sentence dated 6th March, 2020 reads as under:
“14. In the present case the convict has been convicted
for committing the offence u/sec. 5(m) of the POCSO Act
which is punishable u/sec. 6 of the POCSO Act and
u/sec. 376 (2) (I) of IPC. The victim child was aged
about 3½ years at the time of the incident and she had
suffered injury on her private part as reflected in the
MLC and making her complaint about the physical pain
to her mother leading to the registration of present case.
Due to the acts of the convict, the victim child suffered
considerable physical pain and mental trauma.
Considering the aforesaid facts and circumstances, I do
not find that the present case is a fit case for any
leniency and I hereby sentenced convict Ram Preet to
undergo rigorous imprisonment for life for having
committed the offence punishable u/s 6 POCSO Act. I
further impose a fine of Rs. 10,000/- on the convict. In
default of payment of fine, he shall undergo simple
imprisonment for 3 months.
15. However, the convict is not being awarded any
sentence under Section 376 (2) (i) of IPC in view of
Section 42 of POCSO Act which provides that in case
the offender is found guilty under the POCSO Act and
other Section of IPC and the said offence is also covered
under the POCSO Act, the punishment would be
awarded under the said Act providing punishment
greater in degree. In the present case, the convict has
already been convicted under Section 6 of POCSO Act
for life imprisonment and thus, no sentence is being
awarded to the convict U/s 376 (2) (i) of IPC. ”
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 5 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
10. In addition, compensation was also awarded to the Survivor in the
following terms:
“16. The convict shall be entitled to benefit of Section
428 Cr.P.C. It is further directed that the aforesaid fine
imposed on the aforesaid convict be paid to the victim
by way of compensation, upon being deposited by the
convict.
17. In addition thereto, I recommend payment of
adequate compensation to the victim in the present case
as per provisions of Section 357A Cr.P.C. The quantum
of compensation to be awarded under Victim
Compensation Scheme shall be decided by Delhi Legal
Aid Services in terms of provision under Section 357A
Cr.P.C. Accordingly, it is directed that copy of this
Judgment and order be sent to Secretary DLSA, Central
District for necessary action.”
Submissions:
11. The submissions of Ms. Tripathy – ld. Legal Aid Counsel, appearing on
behalf of the Appellant are as follows: –
i. There is inconsistency between the testimony given by the child
and the mother to the effect as to when the incident took place and
when it was reported. The child states that after the incident she
went to sleep and thereafter she informed her mother of what had
happened. However, the mother of the survivor states that the
child reported the incident to her in the morning, after which she
confronted the Accused. Thereafter, the child went to sleep and
upon waking up, complained to her mother about a burning
sensation in her private parts, which is when the mother reported
the incident to the police.
ii. It is recorded in the mother’s testimony that she saw injury marks
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 6 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
on the child, however, the Medico-Legal Case (‘MLC’) does not
report any injury except some redness. The MLC also does not
record any history of sexual assault. The ld. Counsel highlights
that the medical examination was conducted on the same day the
incident is stated to have taken place.
iii. The Accused has tried to explain his version of facts and this has
been supported by PW-7.
iv. There is a possibility that the Survivor has been tutored by her
mother as is clear from her cross-examination.
12. On the other hand, Mr. Bahri, ld. APP submits the following:
i. In the MLC report of the Survivor, there is redness in her private
parts, which constitutes material evidence corroborating the
occurrence of the incident.
ii. Considering the fact that the survivor was only about 3 years old
when the incident took place, small inconsistencies in her
statements ought to be ignored.
iii. The law in fact recognises that benefit has to be given to such
children as is clear from a reading of Section 82/83 of the Indian
Penal Code, 1860.
iv. The statement given by the survivor is sufficient to convict the
Appellant. On three occasions the survivor was uncomfortable and
the Court had to accommodate the Survivor. Finally, when she
was comfortable and she gave the evidence on 28th August, 2019.
The child was clear about what had happened to her. Under such
circumstances, the conviction is fully justified. Moreover, there
was no cross-examination conducted on the occurrence of theSignature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 7 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
incident itself, which itself shows that the incident had occurred.
v. The evidence of the Survivor would also show that there was no
tutoring. She is in fact clear how she had narrated the incident to
her parents and the same has been proved clearly on record.
13. Mr. Harsh Prabhakar, ld. Counsel for the Survivor has again pointed
out the MLC to show that the same does reflect some injury and the said report
read with Section 7 and 8 of the POCSO along with the testimony of the
Survivor, is sufficient to convict the Appellant.
Analysis:
14. The Court has considered the matter. The first and foremost thing that
needs to be noticed is the actual allegations against the Accused. In the
complaint given by the mother dated 19th October, 2017 the allegation is as
under:
“मेरी छोटी बेटी **** रोते-2 मेरे पास आई तथा कहने लगी कक
ऊपर वाले अंकल ने मेरी कच्ची उतार कर उं गली की है ।”
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 8 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
15. In the FIR dated 19th October, 2017, it is recorded as under:
“मेरा पकत आज सुबह ही अपने गां व बरे ली गया था और मैं
अपने बच्चों के साथ घर पर ही था समय करीब 11:00 बजे
डी.टी. 19/10/17 को मेरी छोटी बेटी **** रोते-2 मेरे पास
आई तथा कहने लगी कक ऊपर वाले अंकल ने मेरी कच्ची
उतारकर उं गली की है।”
16. The MLC of the Survivor was conducted on the same day i.e. 19th
October, 2017 and the said MLC was exhibited as Ex.P-1 records as under:
17. A perusal of the MLC would reveal that the doctor stated as under:
• The Survivor was brought to the gynae casualty of the Hindu Rao
Hospital by her mother and a police constable. The allegation made was
that the neighbour of the Survivor had touched her private parts.
• There was no attempt of sexual intercourse or physical assault orSignature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 9 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
insertion of finger into the Survivor’s vagina by the Accused.
• There was no injury mark present on the body or over the abdomen of
the Survivor. Further, no bleeding from the Survivor’s vagina was
observed.
• The External genitalia of the Survivor appeared healthy.
• There was redness present in the Survivor’s private part.
• There was no abrasions/scratch marks present on the internal genitalia
or thighs of the Survivor.
18. The Doctor who conducted the MLC of the Survivor was Dr. Sheeba
Farooqui, the Casualty Medical Officer at Hindu Rao Hospital, Delhi. She
was not examined as witness and thus the Court has to go merely by the
exhibited documents.
19. The Survivor – PW2 initially on 7th June, 2018 and then on 16th July,
2018 was not responsive and remained silent in Court. However, the Court
used the services of a support person, Prof. Nandita Babu, Department of
Phycology and finally on 28th August, 2019, the Survivor was examined as
PW-2 in vulnerable deposition room with the help of support person. She was
then able to give her testimony and also was cross-examined. In her testimony,
her answer to that question as to what the Accused did is as under :
Q4. Phir Uncle ne kaya kiya?
Ans. Meri panti utaari aur yahan par ungli daali
(witness has pointed out finger towards her vagina).
Q5. Aur kuchh bhi kiya tha?
Ans. Uncle ne mujhe chooma bhi tha yaha pe
(witness has pointed out towards her lips).
Q6. Aapko dard bhi hua tha?
Ans. Haan. Mujhe dard hua tha yaha par (witness
has pointed out towards her vagina).
Q7. Aur Uncle ne apne kapdhe bhi utaar the?
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 10 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
Ans. Han. Unhone aapni baniyan aur pant utaari
thi.
20. The testimony of the mother of the Survivor PW-3 is as under:
“On 19.10.2017, I was present at my house along with
my children and my husband went to his native village
at Barelley. On that day, prosecutrix ‘D’ had come to me
while crying at about 11 AM and informed me that ‘upar
wale uncle meri kachhi utarkar ungli kari thi meri
bathroom wali jagah’. I had noticed that there was
mark of nail on her vagina. After listening the same, I
went to the upper floor at the room of accused Rampreet
and asked him why he had done so with my daughter.
Upon which he replied that he had not done anything.
My daughter ‘D’ had also pointed out towards the
accused and informed that this is said uncle who had
done said ‘galat kaam’ with her…..”
21. The date of birth of the Survivor was established as 29th September,
2014 by PW-4, who was the record keeper from the MCD office, Karol Bagh.
Apart from these witnesses, all the other were official witnesses.
22. In the statement given by the Accused under Section 313 of the Cr.PC.,
he states in response to Question no. 7 and Question no. 31 as under:
“Q.7 It is in evidence against you that on 19.10.2017
prosecutrix/PW-2 namely ‘D’ went to (PW-3)-mother of
the victim/prosecutrix namely Smt. ‘S’ while crying at
about 11 am. What have you to say ?
Ans. It is correct. The victim was playing at that time
alongwith other children. The victim was making noise
and therefore I gave her beatings due to which she
started crying and went to her mother.
Q.31 Do you want to say anything else?
Ans. I am innocent and have been falsely implicated in
the present case. I have only given the beatings to the
victim who was making noise.”
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 11 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
23. In the background of the above recorded evidence, the Trial Court, has
incorrectly proceeded in the judgment right from inception. Paragraph 1 of
the Trial Court judgment as under:
“1. Law was set into motion upon the complaint
dated 19.10.2017 (Ex.PW3/A) of the mother of the
victim who stated that on 19.10.2017,at about 11:00 am,
her minor daughter aged about three years came to her
crying and told her that uncle who resided at the upper
floor of the house removed her penti and inserted his
finger. It is further stated that hearing this, she went to
the room of the accused at the upper floor and scolded
him. It is further stated that she made the victim sleep,
however, when she (victim) woke up, she complained
about burning sensation in her private part and thus she
dialed 100 number, upon which PCR officials came and
took her and victim to Hindu Rao Hospital. On the
statement of mother of victim, FIR u/sec. 376 &
3(b)/4/6 POCSO Act was registered.”
24. In the above paragraph, clearly there are two errors. Firstly, that the
accused had inserted his finger in the Survivor’s vagina and secondly, that the
FIR was also registered under Section 6 of the POCSO Act, both of which are
factually incorrect.
25. The complaint and the FIR clearly used the terminology “ungli kari
thi” which does not amount to insertion. Even the MLC of the Survivor dated
19th October, 2017 records without any ambiguity that there is no insertion of
finger into the Survivor’s vagina by the Accused. The discussion in the
impugned judgment to the effect that there was penetrative sexual assault
would therefore not be made out in the present case.
26. In addition, though, the charge was framed under Section 6 of the
POCSO Act, the initial complaint and the FIR did not book the Accused for
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 12 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
offences under Section 6 of the POCSO Act. A perusal of statement of the
Survivor under Section 164 of the Cr.PC. shows that the Accused touched and
kissed the lips of the Survivor. The said statement is also set out below:
“ऊपर वाले Uncle ने मुझे Chocolate दी और मुझे ऊपर
अपने घर ले गए | वहााँ Uncle ने मेरी Panty उतारी और आगे
और पीछे हाथ लगाया|
(The Victim stood and touched her private parts and
pointed out that ‘Uncle’ touched her there.)
Uncle ने चूमा था (She touched her lips and pointed out
that ‘Uncle’ kissed her on lips)
मुझे ददद हुआ था बहुत| Uncle ने pant उतार ददया अपना| मैं
रो पड़ी| Uncle ने छोड़ा नहीीं| मैंने Mumma को बताया|”
27. The charge was, however, framed under Section 3B, 4 and 6 of the
POCSO Act as also Section 376 of the Indian Penal Code, 1860. The
statement of the Survivor under Section 164 of the Cr.PC., read with the initial
complaint and the FIR, would show that the allegation against the Accused
was of touching the Survivor’s private part. The MLC of the Survivor also
records that there is no penetration of the vagina, either by finger or otherwise.
The redness present over the private parts clearly indicate some contact but
not as such that would constitute either penetrative sexual assault or
aggravated penetrative sexual assault.
28. Under the POCSO Act, there are three forms of sexual assault:
i) Simple Sexual Assault under Section 7 – punishable under
Section 8
ii) Penetrative Sexual Assault under Section 3 – punishable under
Section 4
iii) Aggravated Penetrative Sexual Assault under Section 5 –
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 13 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
punishable under Section 6
29. Under Section 3 of the POCSO Act which is punishable under Section
4, there has to be penetration. However, under Section 7 of the POCSO Act
penetration is not required and mere touch would constitute sexual assault.
Sections 7 and 8 of the POCSO Act read as under:
“7. Sexual assault.–Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child or
makes the child touch the vagina, penis, anus or breast
of such person or any other person, or does any other
act with sexual intent which involves physical contact
without penetration is said to commit sexual assault.
8. Punishment for sexual assault.–Whoever, commits
sexual assault, shall be punished with imprisonment of
either description for a term which shall not be less than
three years but which may extend to five years, and shall
also be liable to fine.”
30. In a recent judgment of Santosh v. State of Maharashtra [(2024) SCC
OnLine Bom 2070], the Bombay High Court, while adjudicating on squarely
similar facts, set aside the conviction of the Appellant therein under Section
376 (2)(f)(i) of the Indian Penal Code, 1860, Section 5(m) (n) and Section 6
of the POCSO Act. The Court observed that in the absence of medical
evidence that speaks towards penetration or even forcible attempt of
penetration or even slightest penetration, conviction under Section 5/6 of
POCSO cannot be sustained. The Court further observed that the evidence on
record establishes the fact that the Accused therein had touched the vagina of
the survivor. In view thereof, the Accused therein was inter alia convicted for
the offence punishable under Section 7/8 of the POCSO Act. The relevant
portion of the judgment is extracted hereinunder:
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 14 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
“12. In this background, it would be necessary to
appreciate the evidence of the Medical officer (PW3).
The victim was referred for medical examination on
24.05.2015. The evidence of the Medical Officer (PW3)
coupled with the medical report, needs proper
appreciation. She has stated that on 24.04.2015, she
was working as a Gynaecologist at BGW Hospital,
Gondia. She has stated that a minor victim girl, aged
about 4 years old was brought for examination and on
obtaining consent of her mother, she examined the
victim girl. She has categorically deposed that there
were no minor or major injuries over vulva and vagina.
She has stated that her hymen was intact. There was no
bleeding, but there was swelling on vulva and vagina.
The medical examination report of the victim issued by
her is at Exh.42. She has given opinion that sexual
intercourse has not taken place in this case with the
victim girl. She has further opined that as there was
slight swelling over vagina, there was possibility of
rubbing over vulva and vagina. She has further opined
that there was possibility of an attempt of sexual assault.
In my view, this opinion given by the Medical officer
needs proper appreciation to come to a conclusion as
to the actual offence made out in this case. The learned
Judge has observed that the evidence on record is
sufficient to prove the manipulation of a part of the
body of the victim so as to cause penetration in vagina,
urethra etc. by the accused. The learned Judge has
observed that on the basis of this evidence, the offence
of rape as defined under Section 375 of the IPC has
been proved. Admittedly, the medical evidence is silent
about penetration or even forcible attempt of
penetration or even slightest penetration. The evidence
of the victim girl is also silent about it. She has not
stated that any attempt of penetration or slightest
penetration was made by the accused. She has stated
that the accused lied on her person and therefore, she
felt burning sensation near her private part. The victimSignature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 15 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
has not narrated any specific act having been
committed by the accused so that it could be said to be
an attempt of penetration or even slightest penetration.
……….
13. ……..In my view, in this context, the evidence of the
victim, her mother and the medical evidence would
assume significance. The medical evidence does not
corroborate the case of the prosecution as to the
penetrative sexual assault. The evidence on record is
sufficient to prove that the accused attempted to
commit rape, however he could not commit penetrative
sexual assault. The evidence, on its proper
appreciation, is not sufficient to establish the offence
of actual rape. The evidence, however, is sufficient to
prove the offence of an attempt to commit rape. The
basic ingredients of the offence of rape, as defined
under Section 375 of the IPC, have not been made out.
Similarly, the offence of aggravated penetrative sexual
assault, as defined under Section 5(m) & (n) of
the POCSO Act has not been proved. The offence of
attempt to commit rape has been proved. In my view,
therefore, as far as the offence under the POCSO
Act is concerned, Section 7 of the Act would get
squarely attracted in this case. Section 7 defines sexual
assault on a child and section 8 provides for
punishment for sexual assault. Section 7 states that
whoever, with sexual intent touches the vagina, penis,
anus or breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or any
other person, or does any other act with sexual intent
which involves physical contact without penetration is
said to commit sexual assault. In the case on hand, the
evidence on record clearly proves the intention of the
accused while touching the vagina of the victim. The
medical evidence and the opinion of the Medical
Officer (PW3) clearly spells out the offence of sexual
assault, as defined under Section 7 of the POCSO Act.
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 16 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
On re-appreciation of the evidence, I am satisfied that
the offences proved against the accused will be under
Section 376 read with Section 511 of the IPC and
under Section 7, punishable under section 8 of
the POCSO Act. In view of this, the conviction
recorded by the learned Additional Sessions Judge for
the offence punishable under Section 376(2)(f)(i) of
the IPC and under Sections 5(m)(n) and 6 of
the POCSO Act, is required to be set aside. It is
accordingly set aside. The accused is convicted for the
offence punishable under Section 376 read with
Section 511 of the IPC and under Section 7,
punishable under Section 8 of the POCSO Act.”
31. The evidence in the present case points towards the Appellant touching
the private part of the Survivor and not penetration which is an essential
element to convict the Accused under Section 3/4 and 6 of the POCSO Act.
32. The testimony of the Survivor given in the Court, when compared with
the allegation in the complaint, the FIR, the charge-sheet as also her statement
under Section 164 of the Cr.PC., clearly appears to be an improvement.
Moreover, the Trial Court appears to have ignored the material evidence in
respect of the nature of the act committed by the Accused.
33. Accordingly, this Court finds the Accused to have committed an
offence punishable under Section 354B of the Indian Penal Code, 1860.
However, as per Section 42 of the POCSO Act, in case an offender is found
guilty of any offence punishable under the provisions of the POCSO Act as
well as under any other law for the time being in force, then, he shall be liable
to punishment only under such law or the POCSO Act, which provides for
punishment which is greater in degree. Section 42 of the POCSO Act is
reproduced for a ready reference:
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 17 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
“42. Alternate punishment.–Where an act or omission
constitutes an offence punishable under this Act and
also under sections 166A, 354A, 354B, 354C, 354D,
370, 370A, 375, 376, 2 [376A, 376AB, 376B, 376C,
376D, 376DA, 376DB], 3 [376E, section 509 of the
Indian Penal Code or section 67B of the Information
Technology Act, 2000 (21 of 2000)], then,
notwithstanding anything contained in any law for the
time being in force, the offender found guilty of such
offence shall be liable to punishment only under this Act
or under the Indian Penal Code as provides for
punishment which is greater in degree.”
34. Therefore, following the mandate of Section 42 of the POCSO Act, the
Appellant is held guilty for the commission of offence punishable under
Section 354B of the Indian Penal Code, 1860 which reads as under:
“354B. Assault or use of criminal force to woman with
intent to disrobe.–
Any man who assaults or uses criminal force to any
woman or abets such act with the intention of disrobing
or compelling her to be naked, shall be punished with
imprisonment of either description for a term which
shall not be less than three years but which may extend
to seven years, and shall also be liable to fine.”
35. A perusal of the nominal roll dated 19th December, 2024 would show
that the Appellant has undergone incarceration for a period of 7 years 2
months and 5 days. His conduct has also been satisfactory.
36. In these circumstances, the appeal is partly allowed and the Appellant
is convicted under Section 354B of the Indian Penal Code, 1860 and Sections
7/8 of the POCSO Act. The order on sentence is modified to the period already
undergone. The remaining portion of the order on sentence, i.e., in respect of
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 18 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55
compensation in terms of the Victim Compensation Scheme is however
sustained.
37. The sentence having already been undergone by the Appellant, he may
be released after completion of due formalities, if his custody is not required
in any other case.
38. Copy of this order be communicated to the Jail Superintendent for
necessary compliance.
39. Copy of this order be communicated to the Secretary, Delhi State Legal
Services Authority for necessary information and compliance.
40. Order be uploaded on the website of this Court forthwith.
41. The Appeal is disposed of in above terms. All pending application, if
any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
DECEMBER 23, 2024
Rahul/rks
Signature Not Verified
Digitally Signed
CRL.A. 475/2020 Page 19 of 19
By:DHIRENDER KUMAR
Signing Date:23.12.2024
17:55