On 3rd July 2020, a judgment was passed by the Single Bench Justice Sanjeev Sachdeva, High Court of Delhi who held that “Pulling down of leggings of a child victim and touching of thighs is sexual assault under Section 7 of Protection of Children from Sexual Offenses Act, 2012 (POCSO) (Rajendra Vs State).
The Judgment was against an order of conviction passed by the Trial Court against the Appellant, Rajendra. The Trial court had convicted the Appellant for the offense under Section 10 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for 5 years along with fine of Rs 10,000 and in case of default to pay the fine a further period of 1 month of rigorous imprisonment.
As per the prosecution, the victim then aged 9 years at 2:30 PM was watching TV with her brother then aged 7 years. When Appellant came and inquired about the presence of her mother to which she told that she was off to work. Knowing this he removed her leggings and tried rubbing her thighs to which she got frightened and managed to escape to her neighbor's house where she found that she was not at home she returned her home.
At around 3:30 PM he again came to the victim’s house and asked her to play songs to which she asked him to leave the house and he left. At around 4:00 PM once again when the victim was going to tuition the Appellant asked at what time she would return. To which she did not reply. When she returned at 8:00 PM she told her mother about it and the police were called.
Learned counsel appearing for the Appellant stated that there were discrepancies in the statement. He further stated that the entire complaint seems to be an offshoot of a loan transaction between the Appellant and the mother of the victim and when Appellant demanded money the complaint was registered.
Learned counsel for the Prosecution stated that the testimonies of the child victim and her brother are of sterling quality and there is no discrepancy in their statements. He further contended that there is no material to show that there was a loan transaction between the Appellant and the family of the child victim. He further submitted that the Appellant was a mere worker and could not be able to extend a loan.
The court recorded that the prosecution has produced 8 witnesses to support their statement. The Trial court found no reason as to why minor children would depose against the accused. The child victim was consistent in her rukka statement recorded under Section 164 CrPc as well as in the testimony before the court.
Under section 29 of the POCSO Act raises a statutory presumption against the accused the court stated that “Accused had 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 offense of sexual assault in terms of Section 7 of the POCSO Act.”
In terms of Section 9(m) of the POCSO Act since the sexual assault was committed on a child below 12 years, it would amount to aggravated sexual assault punishable under Section 10 of the POCSO Act.
Nothing was pointed out by the learned counsel of the Appellant that the conclusion arrived by the Trial court is erroneous or suffers from any material irregularity.
The court further stated that “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 the POCSO Act.”
The appeal was dismissed.
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