Pulling down the leggings of a child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of Protection of Children from Sexual Offences Act, 2012, Delhi High Court has held (Rajender vs State).
The judgment was passed by a single Judge Bench of Justice Sanjeev Sachdeva against an order of conviction passed by the Trial court against the Appellant, Rajender.
The Trial Court had convicted the Appellant for the offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
He was sentenced to undergo Rigorous Imprisonment for a period of 5 years and to pay a fine of Rs. 10,000.
According to the Prosecution’s case, at about 2:30 pm on August 21, 2015, the victim girl, then aged 9 years, was sitting in her house with her brother (then aged 7 years) when the Appellant came and enquired about the presence of the mother in the house.
When the child victim informed that her mother was away to her job, the Appellant came inside the house and removed her leggings and started feeling/rubbing his hand on her thighs.
The victim became frightened and ultimately managed to run out of the house.
At about 3.30 pm, the Appellant once again came into the house of the victim and asked the victim to play songs on TV. The victim told the Appellant to go away upon which the Appellant left.
Thereafter, at about 4.00 pm when the victim was going to her tuition class, the Appellant once again met her on the way and asked her as to what time she would return
At about 8.00 pm, when the victim came home, she informed her mother about the incident and thereafter the police was called.
Based on the evidence led by the Prosecution, the Trial Court found the Appellant guilty of the offence under Section 10 of the POCSO.
In appeal before the High Court, the Appellant contended that the entire complaint was an offshoot of a loan transaction between the Appellant and the mother of the victim.
It was argued that there was discrepancy in the statement of the victim and that the Prosecution’s story was not believable.
The Prosecution argued that the testimonies of the child victim and her brother were of sterling quality and there was no material to show that there was ever any loan transaction between the Appellant and the family of the child victim.
The Court recorded that the Prosecution had produced 8 witnesses and perused the testimonies of the two children and their mother as recorded by the Trial Court.
The Court concluded that the testimony of the children was of sterling quality and no discrepancy had been pointed out to disbelieve the testimony of the two children.
The child victim was consistent in her rukka statement, her statement recorded under Section 164 CrPC as well as in the testimony before the Trial Court, the Court noted.
The Court observed that the Appellant had not been able to show any reason as to why the testimony of the two children should be disbelieved.
Stating that under Section 29 of POCSO Act, a statutory presumption was raised against the accused, the Court held,”Accused has not been able to dispel the presumption or discharge the onus. It is established from the testimony of the child victim and her brother that the appellant/accused had pulled down the leggings of the child and touched her thighs. Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of POCSO Act.”Delhi High Court
In terms of Section 9 (m) of the POCSO Act, since the sexual assault was committed on a child below the age of 12, it would amount to aggravated sexual assault punishable under Section 10 of POCSO Act, it added.
The Court thus opined that nothing had been pointed by the Appellant to show that the conclusion arrived at by the Trial Court was erroneous or suffered from any material irregularity.
“I find that the trial court has passed a well-reasoned order after examining the evidence and the law. I find no infirmity in the view taken by the trial court in holding the appellant guilty under Section 10 of POCSO Act.”, it stated.
The appeal was accordingly dismissed.
The Appellant was represented by DHCLSC counsel, Advocate Anuj Kapoor.
APP Raghuvinder Verma appeared for Prosecution.