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Vinay vs The State (Govt. Of Nct) Of Delhi on 16 February, 2018



+ CRL.A. 1044/2017

VINAY ….. Appellant
Through : Mr.Saurabh Kansal with Ms.Pallavi
S.Kansal, Advocates.


Through : Mr.Ravi Nayak, APP.



CRL.M.A.No.18697/2017 (Delay)

1. For the reasons mentioned in the application for
condonation of delay in filing the appeal, the delay is condoned.

2. The application for condonation of delay is disposed of.
CRL.A. 1044/2017 Crl.M.B.2021/2017

1. Challenge in this appeal is a judgment dated 23.02.2017
of learned Addl. Sessions Judge in Sessions Case No.58854/2016
arising out of FIR No.806/2015 PS Adarsh Nagar by which the
appellant – Vinay was held guilty for committing offences punishable
under Sections 354/354A/451 IPC and Section 10 POCSO Act. By an

Crl.A. 1044/2017 Page 1 of 7
order dated 27.02.2017, the appellant was awarded various prison
terms with fine.

2. Briefly stated, the prosecution case as reflected in the
charge-sheet is that on 04.12.2015 at around 03.00 p.m. at House
No.N-144/26, Lal Bagh, Azadpur, Delhi, the appellant with sexual
intent in mind made physical contact with the prosecutrix ‘A’
(assumed name) aged around 9 years and outraged her modesty.
Information about the incident came to be recorded on 04.12.2015 at
around 05.49 p.m. at PS Adarsh Nagar vide Daily Diary (DD) No.25A
(Ex.PW-4/A). The Investigating Officer after recording statement of
the victim (Ex.PW-1/A) lodged First Information Report. In the
complaint, the child gave vivid description of the incident and named
the appellant to be the perpetrator of the crime. ‘A’ was medically
examined; she recorded her 164 Cr.P.C. statement. The appellant was
arrested and taken for medical examination. Statements of the
witnesses conversant with the facts were recorded. Upon completion
of investigation, a charge-sheet was filed against the appellant. To
prove its case, the prosecution examined eight witnesses. In 313
Cr.P.C. statement the appellant denied his involvement in the crime
and pleaded false implication; no defence evidence was adduced. The
trial resulted in conviction as mentioned previously. Aggrieved and
dissatisfied by the said order, the instant appeal has been preferred by
the appellant.

3. I have heard the learned counsel for the parties and have
examined the file. Admitted position is that the prosecutrix and the

Crl.A. 1044/2017 Page 2 of 7
appellant were acquainted with each other; the appellant lived in the
nearby locality.

4. The victim was aged around 9 years on the day of
occurrence. PW-3 (Santosh Bala), Principal, MC Primary School, Co-
aid, Model Town, Delhi, proved the documents (Ex.PW-3/A to
Ex.PW-3/E) depicting date of birth of the child as 07.01.2006. Her
statement remained unchallenged in the cross-examination. The
appellant did not deny if the victim was aged more than 9 years. Since
the date of birth of the prosecutrix came to be recorded prior to the
incident, there was least possibility of victim’s parents to have
manipulated it.

5. The occurrence whereby the child was defiled occurred at
around 03.00 p.m. when the prosecutrix’s father was away at his place
of work and mother was on duty. When her mother PW-2 returned at
around 05.00 p.m., the prosecutrix narrated the incident to her. The
appellant was confronted in the gali at around 07.00 p.m. but he
succeeded to flee. The matter was reported to the police. Apparently,
there was no delay in lodging the FIR.

6. In the complaint, the victim implicated the appellant by
name and assigned specific role to him in the crime. She described the
incident in detail and disclosed as to how and in what manner, the
appellant had touched her inappropriately at various private organs.
‘A’ recorded her 164 Cr.P.C. statement on 05.12.2015. Before her
examination, the learned Presiding Officer put several questions to
ascertain if she was competent to make the statement. After recording
satisfaction that the child was capable to make statement without any

Crl.A. 1044/2017 Page 3 of 7
fear or pressure, her statement (Ex.PW-1/B) came to be recorded.
Again, the prosecutrix reiterated her version given to the police and
implicated the accused for violating her privacy. In her Court
statement, the learned Presiding Officer conducted preliminary
examination to ascertain if the child was capable to understand the
questions put to her and was in a position to give rational answers.
Since the child was a competent witness, her statement was recorded
on oath. In her deposition before the Court, she deposed that on the
day of occurrence her mother had gone to her work and her siblings
were playing outside. At about 04.00 p.m., when she was doing home
work in the house, the accused entered inside the house. He forcibly
kissed her and touched her body inappropriately; he also pressed her
breasts. When she tried to free herself by giving teeth bite on his
hand, the accused left extending threats to kill her in case she
disclosed the incident to anybody. When her mother came, she
apprised her about the incident and the matter was reported to the
police. In the cross-examination, she disclosed that her siblings were
playing nearby a temple at a distance of 6 – 7 houses away from her
house. Her father had gone to the shop. The accused was not on
visiting terms with them. Accused’s house was situated at a distance
of 5 minutes walk from her father’s shop and he was familiar with
them. She further disclosed that though she had raised alarm but none
came for her rescue; the accused remained inside the house for about 5
minutes. She denied if a false complaint was lodged due to a previous
quarrel between the accused and her parents.

Crl.A. 1044/2017 Page 4 of 7

7. On scrutinising the testimony of child witness in its
entirety, it transpires that nothing material has been elicited in the
cross-examination to discard her natural version. The prosecutrix is
consistent throughout at different stages of investigation and trial. She
has proved the version given before the police as well as before the
learned Presiding Officer without any material variation. No ulterior
motive was assigned to the child to falsely implicate the accused with
whom they have acquaintance prior to the incident. No sound reasons
exist to disbelieve the testimony of the prosecutrix.

8. A’s statement has been corroborated in material
particulars by her mother PW-2. She too disclosed that on return from
her job at about 05.00 p.m. she was informed by the daughter about
the occurrence. Victim’s mother had no reasons to use her daughter of
tender age over any alleged money transaction.

9. Certain discrepancies or inconsistencies highlighted by
the appellant’s counsel are insignificant as they do not affect the core
of the prosecution case. The defence pleaded by the appellant to seek
acquittal deserves outright rejection. In 313 Cr.P.C. statement, for the
first time, the appellant came with the plea that he had borrowed
`5,000/- from the victim’s father. When he failed to pay the borrowed
amount `5,000/-, victim’s father demanded `10,000/- and on his
failure to pay, he was falsely implicated in this case. No evidence
surfaced to ascertain as to when and for what purpose, the appellant
had borrowed `5,000/- from the victim’s father. It is highly
unbelievable that for a sum of `5,000/-, the victim’s father would
demand `10,000/- from the appellant. When the appellant was not

Crl.A. 1044/2017 Page 5 of 7
capable to return `5,000/-, how it was possible for him to pay
`10,000/- in lieu of `5,000/-. Moreover, over a trivial issue, the
victim’s parents are not expected to level serious allegations of sexual
harassment to their school going-child aged around 9 years to bring
her in disrepute. The appellant did not disclose as to what job or
business he used to carry on at the relevant time. He did not deny his
presence at the spot; did not deny his visits to the victim’s house.

10. It has come on record that the appellant remained
absconding for sufficient duration after the occurrence and could not
be apprehended. Only on 15.01.2016, he was apprehended and was
medically examined vide MLCs (Ex.PW-6/A Ex.PW-7/A). No
fresh injuries were found on the body that time. Since the appellant
was examined after about 41 days from the date of incident, there was
every possibility of the bite injury given by the child to have
disappeared. Simply because no injury on the victim’s body was
noticed in the MLC, it is not a factor to disbelieve A’s statement.

11. The impugned judgment based upon proper and fair
appreciation of the evidence deserves no intervention; conviction is

12. Regarding Sentence Order, the appellant has been
sentenced under POCSO Act as well as IPC for various offences
described therein. Ingredients of the offences are almost identical;
maximum sentence has been awarded under Section 10 of the POCSO
Act. In my view, no separate sentence is called for, for commission of
offences punishable under Sections 354/354A and 451 IPC. Sentence
awarded under Section 10 POCSO Act needs no modification as the

Crl.A. 1044/2017 Page 6 of 7
appellant aged around 25 years had dared to outrage the modesty of
the child aged around 9 years. Taking advantage of the loneliness of
the child and the previous acquaintance, the appellant entered inside
the house and inappropriately touched the body of the girl child at
various private parts. The appellant deserves no leniency.

13. In the light of the above discussion, while upholding the
conviction of the appellant, Sentence Order is modified to the extent
that the appellant shall undergo rigorous imprisonment for five years
with fine `5,000/-; default sentence being simple imprisonment for ten
days under Section 10 POCSO Act. Sentences awarded under Section
354/354A/451 IPC are set aside.

14. The appeal stands disposed of in the above terms.
Pending application also stands disposed of.

15. Trial Court record be sent back forthwith with the copy of
the order.

16. Intimation be sent to the Superintendent Jail.

FEBRUARY 16, 2018 / tr

Crl.A. 1044/2017 Page 7 of 7

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