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(„impugned judgment‟ in short) passed by Ld. ASJ-01, West, Special Judge under Protection of Children from Sexual Offences Act, 2012. („POCSO Act‟ in short), Tis Hazari Courts, Delhi, whereby the appellant was convicted for the offence under Section 6 of POCSO Act, in new S.C. No. 56841/2016, in case FIR no. 245/2013, Police Station Uttam Nagar ; and order on sentence dated 14.03.2018, whereby the appellant was sentenced to undergo rigorous imprisonment for life under Section 6 of POCSO Act with fine of Rs. 20,000/-, in default to undergo rigorous imprisonment for one year.

2023/DHC/000516 4.5. Ld. Prosecutor further submitted that much was argued on behalf of the appellant/accused that injuries on the private part of the prosecutrix are inconsistent with the allegations of insertion, whether of finger or penis. He submitted that the prosecutrix has been consistent in her testimony that the appellant/accused had rubbed her private part with his penis and had also inserted the finger/penis on which she felt pain ; even the slight penetration, which may not cause such injuries/bleeding as contended on behalf of the appellant/accused, is enough to be covered under Section 3 of the POCSO Act which defines penetrative sexual assault. It categorically mentions that the penetrative sexual assault does not require complete penetration and it could be to any extent and even the slight penetration would be sufficient to constitute an offence of penetrative sexual assault. Further, if the said offence is committed on a child below the age of 12 years as in the present case, same amounts to aggravated penetrative sexual assault as defined in Section 5 of POCSO Act and is punishable under Section 6 of POCSO Act. Thus, the ld. Trial Court has rightly convicted the appellant/accused under Section 6 of POCSO Act.

- „I took the prosecutrix downstairs and she identified the accused in my presence and thereafter, I informed at number 100". In light of the same, the testimony of DW-1 is hardly of any assistance to the appellant. The appellant has utterly failed to prove his plea of alibi.

14.0. In the instant case, the appellant was charged under Section 6 POCSO Act i.e. for offence of aggravated penetrative sexual assault as defined under Section 5 POCSO Act. The POCSO Act raises a presumption under Section 29 that when a person is prosecuted for committing inter alia, an offence under Section 5, the Special Court shall presume that such person has committed or abetted etc, the offence, unless the contrary is proved. Thus, a legal presumption under Section 29 arose against the appellant/accused that he was guilty of the offence punishable under Section 6. The prosecution proved the foundational facts ; it was for the appellant/accused to rebut the presumption under Section 29 by proving to the contrary, which the appellant/accused miserably failed to do.

2023/DHC/000516 14.1. In view of the above evidence on record, it has been established that the appellant/accused inserted his penis into the vagina of the prosecutrix. The extent of penetration is immaterial, in view of Section 3 of POCSO Act, which defines penetrative sexual assault ; and as per which, penetration with penis or any other object, to any extent, into the vagina etc. of a child is sufficient, to be punished for aggravated penetrative sexual under clause (m) of Section 5 POCSO Act, in case the child is below the age of 12 years ; and the same is punishable under Section 6 POCSO Act. The fact that the date of birth of the prosecutrix is 01.04.2009, has come on record vide her birth certificate Ex. PW-10/A proved by PW-10 Rajesh Kumar, Sub- Registrate, West Zone, Rajouri Garden, New Delhi, who was not cross- examined. Even otherwise, the appellant has not disputed that age of the prosecutrix being around 4 years at the time of incident. Thus, the offence committed by the appellant squarely falls under Section 5 (m) POCSO Act attracting punishment under Section 6 POCSO Act.