Delhi High Court
Sanjay vs State (Gnct) Of Delhi on 13 January, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:13.01.2025
+ CRL.A. 124/2024 & CRL.M.(BAIL) 247/2024
SANJAY .....Appellant
versus
STATE (GNCT) OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Rohan J. Alva, Advocate (DHCLSC).
For the Respondent : Mr. Naresh Kumar Chahar, APP for the
State.
Mr. Zeeshan Diwan, Advocate (DHCLSC)-
Through V.C. and Mr. Ahmed Faraz,
Advocate for Complainant.
SI Bharti (P.S. Dwarka North) & Inspector
Manju (P.S. Domestic Airport).
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present appeal has been filed challenging the judgment on
conviction dated 27.01.2023 (hereafter ‘the impugned judgment’)
and order on sentence dated 11.04.2023 (hereafter ‘the impugned
order on sentence’), passed by the learned Additional Sessions Judge,
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 1 of 16
Signing Date:16.01.2025
17:30:58
Dwarka Courts, New Delhi, in SC No. 440994/16 arising out of FIR
No. 175/2014, registered at Police Station Dwarka North.
2. The learned Trial Court by the impugned judgment has
convicted the appellant for offence under Section 6 of the Protection
of Children from Sexual Offences Act, 2012 (‘POCSO Act’).
3. By the impugned order on sentence, the learned Trial Court has
sentenced the appellant to undergo rigorous imprisonment for ten
years for the offence under Section 6 of the POCSO Act with a fine of
₹30,000/- and in default, simple imprisonment for 30 days.
4. Briefly stated, the FIR in the present case was registered based
on the statement of the mother of the victim (5 years old at the time of
the incident) alleging that on 14.03.2014, at around 8pm, when her
daughter (victim) was not found in the room, she peeped into the room
of the accused /appellant, who used to reside at the same floor in a
rented premises and saw that the victim was made to hold the penis of
the accused in her hand. She alleged that the landlord – Ram Kumar
on being informed about the incident, asked them not to report the
matter to the police. However, later the victim revealed that the
accused inserted his penis into her mouth which led to the registration
of the present FIR under Sections 376 of the Indian Penal Code, 1860
and Sections 4/6 of the POCSO Act.
5. The victim supported the case of the prosecution in her
statement under Section 164 of the CrPC.
6. By order dated 13.05.2014, charges were framed against the
appellant for offences under Section 6 read with Section 5(L) of the
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 2 of 16
Signing Date:16.01.2025
17:30:58
POCSO Act for committing aggravated penetrative sexual assault
upon the child victim.
7. The prosecution cited 9 witnesses in support of its case. The
said witnesses included the victim’ mother (PW1) and the child victim
(PW2).
8. The appellant denied the allegations in his statement under
Section 313 of the CrPC and contested that he was being falsely
implicated by the victim’s family members.
9. The learned Trial Court convicted the appellant of the alleged
offences by the impugned judgment by taking into consideration the
testimony of the prosecution witnesses, especially, the victim and her
mother. It was noted that the victim had completely supported the case
of the prosecution and her testimony is corroborated by that of her
mother. It was observed that the discrepancies in the statements of the
victim and her mother were only minor in nature and not fatal to the
case of the prosecution.
10. The learned counsel for the appellant submitted that the learned
Trial Court erred in not granting benefit of doubt to the appellant and
convicting him mechanically without appreciating that the prosecution
has been unable to establish its case beyond reasonable doubt and
prove the foundational facts.
11. He argued that there is no incriminating medical evidence
against the appellant and the learned Trial Court erroneously placed
reliance on the version of the victim. He submitted that there is no
independent material to corroborate the version of the victim and the
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 3 of 16
Signing Date:16.01.2025
17:30:58
same cannot be blindly relied upon in view of the inconsistencies and
improvements in the victim’s statements.
12. He submitted that the learned Trial Court has erroneously
observed that there is only a minor discrepancy in the statements of
the victim, as it contained material contradictions and inconsistencies
that significantly undermined the credibility of the prosecution’s case.
The discrepancies related to the sequence of events, the location of the
assault, and the physical description of the incident. The counsel
argued that these contradictions were not minor but struck at the very
root of the prosecution’s case.
13. Per contra, the learned Additional Public Prosecutor for the
State vehemently contested that the victim had supported the case of
the prosecution and the same alone is sufficient to confirm the
conviction of the accused.
Analysis
14. At the outset, it is relevant to note that while dealing with a
challenge to an appeal against judgment on conviction and sentence,
in exercise of Appellate Jurisdiction this Court is required to re-
appreciate the evidence in its entirety and apply its mind
independently to the material on record. The Hon’ble Apex Court in
the case of Jogi & Ors. v. The State of Madhya Pradesh : Criminal
Appeal No. 1350/2021 had considered the scope of the High Court’s
appellate jurisdiction under Section 374 of the CrPC and held as
under:
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 4 of 16
Signing Date:16.01.2025
17:30:58
“9. The High Court was dealing with a substantive appeal under
the provisions of Section 374 of the Code of Criminal Procedure
1973. In the exercise of its appellate jurisdiction, the High Court
was required to evaluate the evidence on the record
independently and to arrive at its own findings as regards the
culpability or otherwise of the accused on the basis of the
evidentiary material. As the judgment of the High Court indicates,
save and except for one sentence, which has been extracted above,
there has been virtually no independent evaluation of the evidence
on the record. While considering the criminal appeal under Section
374(2) of CrPC, the High Court was duty bound to consider the
entirety of the evidence. The nature of the jurisdiction has been
dealt with in a judgment of this Court in Majjal v State of Haryaya
[(2013) 6 SCC 798] , where the Court held:
‘6. In this case what strikes us is the cryptic nature of the
High Court’s observations on the merits of the case. The
High Court has set out the facts in detail. It has mentioned
the names and numbers of the prosecution witnesses.
Particulars of all documents produced in the court along
with their exhibit numbers have been mentioned. Gist of
the trial court’s observations and findings are set out in a
long paragraph. Then there is a reference to the
arguments advanced by the counsel. Thereafter, without
any proper analysis of the evidence almost in a summary
way the High Court has dismissed the appeal. The High
Court’s cryptic reasoning is contained in two short
paragraphs. We find such disposal of a criminal appeal by
the High Court particularly in a case involving charge
under Section 302 IPC where the accused is sentenced to
life imprisonment unsatisfactory.
7. It was necessary for the High Court to consider
whether the trial court’s assessment of the evidence and
its opinion that the appellant must be convicted deserve
to be confirmed. This exercise is necessary because the
personal liberty of an accused is curtailed because of the
conviction. The High Court must state its reasons why it
is accepting the evidence on record. The High Court’s
concurrence with the trial court’s view would be
acceptable only if it is supported by reasons. In such
appeals it is a court of first appeal. Reasons cannot be
cryptic. By this, we do not mean that the High Court is
expected to write an unduly long treatise. The judgmentSignature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 5 of 16
Signing Date:16.01.2025
17:30:58
may be short but must reflect proper application of mind
to vital evidence and important submissions which go to
the root of the matter. Since this exercise is not conducted
by the High Court, the appeal deserves to be remanded for
a fresh hearing after setting aside the impugned order.’ ”
(emphasis supplied)
15. In the present case, the allegations levelled against the appellant
are grievous in nature. It is the case of the prosecution that the
appellant committed aggravated penetrative sexual assault upon the
child victim, who was merely five years old at the time of the incident.
16. It is relevant to note that the appellant has been convicted for
the offence under Section 6 of the POCSO Act. The same prescribes
the punishment for aggravated penetrative sexual assault and attracts
the presumption under Section 29 of the POCSO Act. The same reads
as under:
“29. Presumption as to certain offences.–Where a person is
prosecuted for committing or abetting or attempting to commit
any offence under sections 3, 5, 7 and section 9 of this Act, the
Special Court shall presume, that such person has committed
or abetted or attempted to commit the offence, as the case may
be unless the contrary is proved.”
17. It is trite law that the said presumption only comes into play
once the prosecution is able to establish foundational facts and it can
be rebutted by discrediting the witnesses through cross-examination as
well [Ref. Altaf Ahmed v. State (GNCTD of Delhi): 2020 SCC
OnLine Del 1938].
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 6 of 16
Signing Date:16.01.2025
17:30:58
18. In the present case, the prosecution has sought to establish its
case essentially through the evidence of the prosecution witnesses,
especially the victim.
19. It is therefore imperative to peruse the statements tendered by
the witnesses. In the FIR, it was stated by the mother of the
victim/complainant, that when she peeped into the room of the
appellant, she saw that that the victim was made to hold the private
part of the appellant in her hand. She further alleged that the victim
told her that the appellant inserted her private part into her mouth. In
her statement under Section 164 of the CrPC, she reiterated the facts
as stated in the FIR. She further alleged that the victim informed her
that the appellant attempted to commit penetrative sexual assault by
trying to insert his private part into the victim’s vagina and also put it
in her mouth. During her examination, the mother of the victim (PW
1) supported the case of the prosecution.
20. The victim in her statement under Section 164 of the CrPC,
stated that the appellant removed her lower clothes and committed
penetrative sexual assault upon her by trying to insert his private part
in her vagina and had also put his private part in her mouth. During
examination, the child victim (PW 2) deposed that the appellant put
his private part in her mouth and said that he would give her toffees
and some money. Further, during her cross examination, the victim
stated that “Accused Sanjay is a bad person” on her own volition.
21. It is pertinent to note that since no document was placed on
record by the parents of the child victim to prove her age, ossification
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 7 of 16
Signing Date:16.01.2025
17:30:58
test of the victim was conducted and as per ossification report Ex.
PW11/A, the age of the victim was opined to be between 6 to 8 years.
Hence, undisputably, the victim is a ‘child’ within the meaning of
Section 2(d) of the POCSO Act.
22. It is trite law that the accused can be convicted solely on the
basis of evidence of the complainant / victim as long as same inspires
confidence and corroboration is not necessary for the same. The law
on this aspect was discussed in detail by the Hon’ble Apex Court by
Nirmal Premkumar v. State :2024 SCC OnLine SC 260. The
relevant portion of the same is produced hereunder:
“11. Law is well settled that generally speaking, oral testimony
may be classified into three categories, viz.: (i) wholly reliable;
(ii) wholly unreliable; (iii) neither wholly reliable nor wholly
unreliable. The first two category of cases may not pose serious
difficulty for the Court in arriving at its conclusion(s). However,
in the third category of cases, the Court has to be circumspect
and look for corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement of the rule
of prudence.
12. In Ganesan v. State4 , this Court held that the sole testimony of
the victim, if found reliable and trustworthy, requires no
corroboration and may be sufficient to invite conviction of the
accused.
13. This Court was tasked to adjudicate a matter involving gang
rape allegations under section 376(2)(g), I.P.C in Rai Sandeep v.
State (NCT of Delhi)5 . The Court found totally conflicting
versions of the prosecutrix, from what was stated in the complaint
and what was deposed before Court, resulting in material
inconsistencies. Reversing the conviction and holding that the
prosecutrix cannot be held to be a ‘sterling witness’, the Court
opined as under:
“22. In our considered opinion, the ‘sterling witness’
should be of a very high quality and calibre whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to acceptSignature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 8 of 16
Signing Date:16.01.2025
17:30:58
it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness
of the statement made by such a witness. What would be
more relevant would be the consistency of the statement
right from the starting point till the end, namely, at the time
when the witness makes the initial statement and ultimately
before the court. It should be natural and consistent with
the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may
be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of other
supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version
should consistently match with the version of every other
witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where
there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness can be
called as a ‘sterling witness’ whose version can be
accepted by the court without any corroboration and based
on which the guilty can be punished. To be more precise,
the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in
order to enable the court trying the offence to rely on the
core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
(underlining ours, for emphasis)
14. In Krishan Kumar Malik v. State of Haryana6 , this Court laid
down that although the victim’s solitary evidence in matters related
to sexual offences is generally deemed sufficient to hold an accused
guilty, the conviction cannot be sustained if the prosecutrix’s
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 9 of 16
Signing Date:16.01.2025
17:30:58
testimony is found unreliable and insufficient due to identified
flaws and lacunae. It was held thus:
“31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
appellant guilty of the said offences. 32. Indeed there are
several significant variations in material facts in her
Section 164 statement, Section 161 statement (CrPC), FIR
and deposition in court. Thus, it was necessary to get her
evidence corroborated independently, which they could
have done either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of her
alleged abduction. The record shows that Bimla Devi
though cited as a witness was not examined and later given
up by the public prosecutor on the ground that she has been
won over by the appellant.”
15. What flows from the aforesaid decisions is that in cases where
witnesses are neither wholly reliable nor wholly unreliable, the
Court should strive to find out the true genesis of the incident.
The Court can rely on the victim as a “sterling witness” without
further corroboration, but the quality and credibility must be
exceptionally high. The statement of the prosecutrix ought to be
consistent from the beginning to the end (minor inconsistences
excepted), from the initial statement to the oral testimony, without
creating any doubt qua the prosecution’s case.While a victim’s
testimony is usually enough for sexual offence cases, an
unreliable or insufficient account from the prosecutrix, marked
by identified flaws and gaps, could make it difficult for a
conviction to be recorded.”
(emphasis supplied)
23. It is also relevant to note that the victim in the present case is a
minor girl who was only five years old at the time of the incident and
when her statement under Section 164 of the CrPC was recorded. As
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 10 of 16
Signing Date:16.01.2025
17:30:58
rightly noted by the learned Trial Court, it is difficult to fathom as to
why a young girl of merely five years of age would make up such a
story to falsely implicate the appellant.
24. The Hon’ble Apex Court in the case of State of H.P. v. Sanjay
Kumar :(2017) 2 SCC 51 had relied upon the evidence of the child
victim who was raped when she was nine years old by her uncle and
noted as under:
“30. By no means, it is suggested that whenever such charge of
rape is made, where the victim is a child, it has to be treated as a
gospel truth and the accused person has to be convicted. We have
already discussed above the manner in which the testimony of the
prosecutrix is to be examined and analysed in order to find out the
truth therein and to ensure that deposition of the victim is
trustworthy. At the same time, after taking all due precautions
which are necessary, when it is found that the prosecution
version is worth believing, the case is to be dealt with all
sensitivity that is needed in such cases. In such a situation one has
to take stock of the realities of life as well. Various studies show
that in more than 80% cases of such abuses, perpetrators have
acquaintance with the victims who are not strangers. The danger is
more within than outside. Most of the time, acquaintance rapes,
when the culprit is a family member, are not even reported for
various reasons, not difficult to fathom. The strongest among those
is the fear of attracting social stigma. Another deterring factor
which many times prevents such victims or their families to lodge a
complaint is that they find whole process of criminal justice system
extremely intimidating coupled with absence of victim protection
mechanism. Therefore, time is ripe to bring about significant
reforms in the criminal justice system as well. Equally, there is also
a dire need to have a survivor-centric approach towards victims of
sexual violence, particularly, the children, keeping in view the
traumatic long-lasting effects on such victims.
31. After thorough analysis of all relevant and attendant factors,
we are of the opinion that none of the grounds, on which the High
Court has cleared the respondent, has any merit. By now it is well
settled that the testimony of a victim in cases of sexual offences is
vital and unless there are compelling reasons which necessitate
looking for corroboration of a statement, the courts should findSignature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 11 of 16
Signing Date:16.01.2025
17:30:58
no difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her testimony has
to inspire confidence. Seeking corroboration to a statement
before relying upon the same as a rule, in such cases, would
literally amount to adding insult to injury. The deposition of the
prosecutrix has, thus, to be taken as a whole. Needless to reiterate
that the victim of rape is not an accomplice and her evidence can
be acted upon without corroboration. She stands at a higher
pedestal than an injured witness does. If the court finds it
difficult to accept her version, it may seek corroboration from
some evidence which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to equate one
who is a victim of the lust of another with an accomplice to a
crime and thereby insult womanhood. It would be adding insult to
injury to tell a woman that her claim of rape will not be believed
unless it is corroborated in material particulars, as in the case of
an accomplice to a crime. Why should the evidence of the girl or
the woman who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of corroboration has no
substance (See Bhupinder Sharma v. State of H.P. [Bhupinder
Sharma v. State of H.P., (2003) 8 SCC 551 : 2004 SCC (Cri) 31] ).
Notwithstanding this legal position, in the instant case, we even
find enough corroborative material as well, which is discussed
hereinabove.
xxx
33. At this juncture, we would also like to reproduce the following
passage from the judgment of this Court in State of Rajasthan v.
Om Prakash [State of Rajasthan v. Om Prakash, (2002) 5 SCC
745 : 2002 SCC (Cri) 1210] : (SCC p. 755, para 19)
’19. Child rape cases are cases of perverse lust for sex
where even innocent children are not spared in pursuit of
sexual pleasure. There cannot be anything more obscene
than this. It is a crime against humanity. Many such cases
are not even brought to light because of the social stigma
attached thereto. According to some surveys, there has
been a steep rise in child rape cases. Children need
special care and protection. In such cases, responsibility
on the shoulders of the courts is more onerous so as to
provide proper legal protection to these children. Their
physical and mental immobility call for such protection.
Children are the natural resource of our country. They
are the country’s future. Hope of tomorrow rests on them.
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 12 of 16
Signing Date:16.01.2025
17:30:58
In our country, a girl child is in a very vulnerable position
and one of the modes of her exploitation is rape besides
other modes of sexual abuse. These factors point towards
a different approach required to be adopted. The
overturning of a well-considered and well-analysed
judgment of the trial court on grounds like non-
examination of other witnesses, when the case against the
respondent otherwise stood established beyond any
reasonable doubt was not called for. The minor
contradiction of recovery of one or two underwears was
wholly insignificant.’ ”
(emphasis supplied)
25. The Hon’ble High Court of Calcutta in the case of Animesh
Biswas v. State of W.B. : 2023 SCC OnLine Cal 2633 has succinctly
summarised the law on evaluation of the testimony of a child victim
and observed as under:
“34. In catena of decisions Hon’ble Apex Court held that the
evaluation of the evidence of child witnesses, especially where the
child is the victim herself/himself, is always a tricky affair.
Combating, and, at times, conflicting, considerations come into
play in such cases. On the one hand, there exists a presumption
that a child of tender years would not, ordinarily, lie. The
applicability, or otherwise, of this presumption, would necessarily
depend, to a large extent, on the age of the child. No dividing line
can be drawn in such cases; however, one may reasonably
presume that a child of the age of four, or thereabouts, would be of
an age at which, to questions spontaneously put to the child, the
answer would ordinarily be the truth. As against this, the Court is
also required to be alive to the fact that children are
impressionable individuals, especially when they are younger in
age, and are, therefore, more easily tutored. The possibility of a
small child, whose cognitive and intellectual faculties are yet not
fully developed, being compelled to testify in a particular manner,
cannot be easily gainsaid. Even so, the prevalent jurisprudential
approach proscribes courts from readily treating the evidence of
child witnesses as tutored and, ordinarily, where a child is
subjected to sexual assault, her, or his, statement possesses
considerable probative value.
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 13 of 16
Signing Date:16.01.2025
17:30:58
35. On the other hand, Hon’ble Apex Court reiterated that one of
the cardinal principles to be borne in mind, while assessing the
acceptability of the evidence of a child witness, is that due respect
has to be accorded to the sensibility and sensitivity of the Trial
Court, on the issue of reliability of the child, as a witness in the
case, as such decision essentially turns on the observation, by the
Trial Court itself, regarding the demeanour and maturity of the
concerned child witness. An appellate court would interfere, on
this issue, only where the records make it apparent that the Trial
Court erred in regarding the child as a reliable witness. Where no
such indication is present, the appellate court witness, where the
Trial Court has found it to be credible, convincing and reliable. It
went onto note that in the present case it is not disputed that the
victim (Child witness) was not competent to depose to the facts
and was not a reliable witness.Once a child witness, if found
competent to depose to the facts and reliable one such evidence
could be the basis of conviction. In other words evening he
absence of oath, the evidence of a child witness can be considered
under Section 118 of the Indian Evidence Act, 1872 provided that
such witness is able to understand the answers thereof. (Dattu
Ramrao Sakhare v. State of Maharashtra, 1997 Latest Caselaw
447 SC).”
(emphasis supplied)
26. On careful examination of the statements of the victim and the
mother of the victim, it appears that while there are certain
discrepancies in the statements but that does not give benefit to the
appellant since there is sufficient evidence on record to prove that the
alleged act was committed by the appellant. The essential ingredient to
bring home charge under Section 6 of the POCSO Act is penetration
into vagina, mouth, anus etc. In the present case, both the material
witnesses have corroborated the testimony of each other on the said
aspect of insertion of penis into the mouth of the child victim.
27. The learned Trial Court, rightly noted that the testimony of the
victim’s mother also substantially corroborates and supports the
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 14 of 16
Signing Date:16.01.2025
17:30:58
version of the victim. It is suffice to say that discrepancies which do
not go to the root of the matter and shake the basic version of the
witnesses therefore cannot be annexed with undue importance. More
so when all the important probabilities factor echoes in favour of the
version narrated by the witnesses.
28. As noted above, while the Court has to be sensitive while
considering the statement of a child victim in such cases, the reality of
the impressionable nature of children and the possibility of them being
tutored cannot be ignored. At the same time, when the learned Trial
Court has found the victim to be reliable and when the victim has
stuck by her version throughout trial, mere apprehension of the
appellant that the victim has been tutored is not enough to disregard
the victim’s evidence. The said factor has to be established by either
showing motive for false implication or through the evidence of the
witness herself.
29. The appellant has raised the defence that he has been implicated
due to prior enmity between the appellant and the family of the victim.
As noted by the learned Trial Court, the appellant has not led any
evidence and has been unable to create any doubt through cross-
examining the witnesses in this regard. Apart from the bare averments
of the appellant, there is nothing to support his defence that he has
been falsely implicated due to prior animosity.
30. In view of the same, the testimony of the witness inspires
confidence and the appellant has been unable to show that the version
of the victim is tutored. In such circumstances, the foundational facts
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 15 of 16
Signing Date:16.01.2025
17:30:58
stand proved by the prosecution through the evidence of the victim
and her brother and the appellant has not been able to create any doubt
to rebut the presumption under Section 29 of the POCSO Act.
31. Insofar as the sentence of the appellant is concerned, in the
opinion of this Court, the learned Trial Court has rightly appreciated
the seriousness of the offence and taken into account that the victim
was merely five years old at the time of the incident while the
appellant was a grown man. This Court finds the quantum of sentence
to be proportional with the crime as has been committed by the
appellant.
32. In view of the aforesaid discussion, this Court finds no reason to
interfere with the impugned judgment and order on sentence.
33. The appeal is dismissed in the aforesaid terms. Pending
application stands disposed of.
AMIT MAHAJAN, J
JANUARY 13, 2025
Signature Not Verified
Signed By:HARMINDER
KAUR CRL.A. 124/2024 Page 16 of 16
Signing Date:16.01.2025
17:30:58