MUKTA GUPTA, J. - (1.) The instant appeal has been filed by the appellant Rohit Saini challenging the impugned judgment dated 24th July, 2014 whereby the appellant has been convicted for the offences punishable under Sections 363/506 Part I IPC and Section 10 Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act') in FIR No. 375/2013 registered at PS Sarai Rohilla and the order on sentence dated 30th July, 2014 directing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/ - in default to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 10 of POCSO Act and rigorous imprisonment for a period of six months for the offence punishable under Section 506 Part I IPC.
(2.) The prosecution case is that on 27th August, 2013 around 3:35 PM, DD No. 24A was received informing that a girl aged 5 -6 years has been raped at Gali no. 7, Padam Nagar, SBI, Sarai Rohilla. On the receipt of DD No. 24A, SI Benktesh PW -5 along with Ct. Shokeen PW -6 reached the place of incident. The complainant (grandmother of the prosecutrix) along with the prosecutrix aged about 7 years and public persons were present at the spot. It was revealed that the PCR van had already taken the appellant to the hospital. PW -1, the complainant stated that the prosecutrix was aged 7 years and studied in class 2. The prosecutrix used to come back in school van at Padam Nagar road. She stated when she was going to pick up the prosecutrix around 3:15 P.M., her neighbour Rekha PW -3 informed her that one boy had taken her to the house of rationwala. Thereafter, PW -1 reached the said house and saw that the appellant Rohit had removed his half pants and had also removed the half pants of the prosecutrix. The prosecutrix was on his lap and he was caressing her vagina with one hand and had gagged her mouth with another hand. She raised alarm on which public persons gathered there, apprehended the appellant, gave him beatings and called on 100 number. PW -1 further stated that she had enquired from the prosecutrix and since she was not raped (galat kaam), PW -1 refused for her medical examination. She stated that the appellant was her neighbour and trying to sexually assault the prosecutrix. On the basis of the statement of PW -1 recorded by SI Alma Minz PW -7, FIR Ex. PW -4/A was registered under Sections 376/511 IPC and Section 8 of POCSO Act. Charges under Sections 376/511/506 IPC and Section 6 read with Section 18 and Section 10 of POCSO Act were framed against the appellant.
(3.) Learned counsel for the appellant contends that the prosecution case is based on the testimony of PW -1 and PW -2 but no reliance can be placed on their depositions as there are material contradictions in their depositions. PW -1 deposed that the appellant was caressing the vagina of the prosecutrix but the prosecutrix PW -2 did not depose so. Furthermore, there was no medical examination of the prosecutrix. It is further contended that there was no evidence that the clothes recovered from the place of occurrence belonged to the appellant. Learned counsel for the appellant further contends that the offence punishable under Section 10 of POCSO cannot be invoked as there was no aggravated sexual assault as defined under Section 9 (m) of the POCSO Act.;