Non-Examination Of 4-Yr-Old Rape Victim Not Fatal To Prosecution Case: Delhi High Court Upholds Life Sentence Under POCSO Act

The Delhi High Court has upheld life sentence awarded to a man for committing rape on a 4 year old minor girl within his close family. 

A division bench comprising of Justice Mukta Gupta and Justice Mini Pushkarna was dealing with an appeal filed by one Mukish, challenging the Judgment dated 28th November, 2019 and order on point of sentence dated 29th November, 2019 passed by POCSO Judge.

The Court had convicted the appellant for the offence punishable under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 and awarded sentence of Imprisonment for life along with fine of Rs.10,000.

The allegations against the appellant were that he committed aggravated penetrative sexual assault upon the minor on 14th March, 2014 at a house in city's Badarpur. Vide order dated 11th July, 2014, charge for offence punishable under sec. 6 of the POCSO Act was framed against the appellant. A total of 15 witnesses were examined by the prosecution.

The main ground of appeal was that prosecution had not been successful in establishing the guilt of the appellant and that the testimony of the prosecution witnesses did not inspire any confidence. In this backdrop, it was the appellant's case that no conviction or sentence could possibly be awarded on the basis of such evidence. 

It was argued on behalf of the appellant that the mother and father of the victim had not supported the case of the prosecution and had deposed in favour of the appellant. 

The Court was of the view that the contention raised by the appellant that the victim child was not examined cannot be fatal to the prosecution's case for the reason that she was hardly four years old at the time of the incident. 

"Being of such tender age she was not in a position to give any statement. The learned Trial Court has rightly held that the tender age of the victim coupled with her lack of maturity to understand as to what ghastly/ wrong act had been committed with her, was the reason why she was not examined, or arrayed as a witness," the Court observed. 

The Court added that the Trial Court had rightly held that penetrative sexual assault was committed with the minor even in the absence of any direct evidence or testimony of the victim or her parents.

"This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused," the Court said.

On perusing the prosecution's evidence, the Court concluded that the charges against the appellant were proved beyond any doubt.

Regarding the prayer for leniency by reducing the sentence awarded to the appellant, the Court observed that his act, considering the fact that he was already married having six children and being related to the parents of the minor victim, did not inspire any case for leniency in his favour. 

"The accused has committed heinous crime of rape on a four year girl of tender age within his close family. This Court finds no justification in reducing the sentence awarded to the appellant," the Court concluded. 

Accordingly the plea was dismissed. 

Case Title: Mukish v. State

Citation: 2022 LiveLaw (Del) 566

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