JUDGMENT Hon'ble Ravindra Maithani, J. (Oral) Instant appeal has been preferred against the judgment and order dated 09.05.2016 passed in Sessions Trial No.36 of 2014, State vs. Ramchander by the Fast Track Court/Special Judge (POCSO)/ Addition District and Sessions Judge, Dehradun. By the impugned judgment and order, the appellant has been convicted under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (for short the “POCSO Act") and sentenced to imprisonment for life and a fine of Rs.50,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of one month. 2. The prosecution story briefly stated is hereunder:- On 21.06.2014 at about 06:00 in the evening, the appellant took the victim, a handicapped girl of 11 years of age, under the pretext of taking her out for play, but she did not return for about 1-2 hours. A search was made by her father, the first informant PW1, her mother PW4 and other relatives, ward members etc. Appellant was seen indulging in “galat kaam" with the victim girl. On seeing the witnesses, appellant tried to run away but he was caught. The victim was bleeding from her vagina, she was taken to Government hospital. The appellant was beaten up by the public, which had gathered there. A report of this incident was lodged on 21.06.2014 at 09:20 p.m. at Police Station Rishikesh, which is 1 km. away from the place of incident. It has also come in evidence that the house of the appellant was near the house of the victim. The victim is not biological daughter of PW1. In fact, PW1 found her, when she was too young, at Triveni Ghat, Rishikesh. She had symptoms of polio; she was handicapped. At about 08:00 PM on the same day, she was medically examined by PW3 Dr. Nidhi Upadhyay. There were injuries on her vagina. Slides were taken for pathological examination; spermatozoa was detected in the slides. After radiological examination, her age was determined as below eleven years. During investigation, the clothes of the victim girl as well as the appellant and the bed-sheet, at which the offence was committed by the appellant in his house and the bed-sheet from the house of the victim, on which she was made to lay down after the incident, were taken into custody by the Investigating Officer. During investigation, the clothes of the victim girl as well as the appellant and the bed-sheet, at which the offence was committed by the appellant in his house and the bed-sheet from the house of the victim, on which she was made to lay down after the incident, were taken into custody by the Investigating Officer. All these articles were sent for Forensic Science Examination. A report was also received. During investigation, statements of the victim girl were also recorded. Victim girl used to speak with lisp, therefore, during her examination under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code") a request was made that her mother may be permitted to accompany her. After investigation charge-sheet was submitted. 3. Cognizance was taken. On 14.10.2014 charges under Sections 376 IPC and 4/6 of the POCSO Act were leveled against the appellant, to which he pleaded not guilty and claimed to be tried. 4. In order to prove the case, prosecution examined 8 witnesses, namely, PW1 the father of the victim girl, PW2 the victim girl, PW3 Dr. Nidhi Upadhyay, PW4 mother of the victim girl, PW5 brother-in-law of the victim girl, PW6 sister of the victim girl, PW7 Constable Rukmani Gaur and PW8 S.I. Sangita. 5. Appellant was examined under Section 313 of the Code. According to him, the victim girl was tutored. He has been falsely implicated. He had a fight with the brother-in-law of the victim girl, therefore, he has been falsely implicated. 6. On behalf of the appellant, learned amicus curiae assisted the Court. Heard Mr. Trilochan Pandey, amicus curiae for the appellant and Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand. 7. Learned amicus curiae would argue that there is no independent witness to the incident. The independent witnesses, namely, Geeta and Savitri Pandey have not been examined; there is variation in the statements of the witnesses as to the time when the offence was committed; there have been a lot of inconsistencies in the statements of the witnesses as to the place from where, the appellant was caught after the incident. Learned amicus curiae would argue that prosecution failed to prove the charges against the appellant. 8. Learned State counsel would argue that it is fully proved case. Learned amicus curiae would argue that prosecution failed to prove the charges against the appellant. 8. Learned State counsel would argue that it is fully proved case. PW1 father of the victim girl and PW4 mother of the victim girl have categorically stated as to what had happened on the date of incident. The appellant was caught soon after the incident. Their statements have been corroborated by the statements of PW5 brother-in-law of the victim girl and PW6 sister of the victim girl. The victim girl was medically examined, soon after the incident by PW3 Dr. Nidhi Upadhyay. There were injuries found on the person of the victim girl and injuries on her private parts. In pathological examination of the victim girl spermatozoa was detected. Forensic examination of the clothes and bed-sheets, which were taken into custody by the Investigating Officer, corroborates the prosecution case. DNA profile report also supports the prosecutions case and it is a case proved. There are no reasons to make any interference in this appeal. 9. PW1 is the father of the victim girl. As stated, he is not biological father of her. He found her at Trivendi Ghat, Rishikesh and thereafter she was named accordingly. According to him, the victim girl is with him since then, as his daughter. On 21.06.2014, at about 06:00 in the evening, the victim girl was taken by the appellant along with him under the pretext of taking her out for play. She did not return for about 1-2 hours. A search was made. When they went to the house of the appellant, they saw the victim girl crying. She was bleeding from her vagina. The appellant at that time tried to run away but he was caught by this witness and a lot of persons gathered there. They beat the appellant up and handed him to the police. PW1 got the report lodged, which he has proved. According to him, the victim girl is handicapped. He proved a certificate to that effect in the Court and also stated about clothes and bed-sheets, which were taken into custody by the police. PW4 is the mother of the victim girl, she has corroborated the statements of PW1, the father of the victim girl. According to both these witnesses, when they searched for the victim girl, their daughter PW6 and son-in-law PW5, had also accompanied him. 10. PW4 is the mother of the victim girl, she has corroborated the statements of PW1, the father of the victim girl. According to both these witnesses, when they searched for the victim girl, their daughter PW6 and son-in-law PW5, had also accompanied him. 10. PW5 is the brother-in-law of the victim girl. According to him on 21.06.2014 he was at his house, when his mother-in-law came there and informed that the appellant had committed “galat kaam" with the victim girl. Thereafter, this witness alongwith his wife PW6 went to his in-laws-house, where he saw the victim girl bleeding from her vagina. They took the victim girl to the Government hospital, where she was medically examined. PW6 also corroborates the statement of PW5. Both these witnesses have stated that they did not visit the house of the appellant, as stated by PW1 father of the victim and PW4 her mother. 11. PW7 is a formal witness, who proved the chik FIR and entries in the general diary. PW8 S.I. Sangita, is the Investigating Officer, who has taken steps during the investigation, namely, taking into custody the clothes; prepared their memos; arrest of the appellant; application for examination of the victim girl under Section 164 of the Code. She proved the charge sheet. 12. A few facts are undisputed. Victim girl is not biological daughter of PW1 and PW4, but they treated her as their daughter. She is a girl of tender age. There is no birth certificate, as such proved. PW1 the father of the victim girl, categorically stated that he does not know her date of birth. But, he found her at Trivani Ghat, some eight years, prior to the date, when he deposed before the court. Prosecution got her ossification test conducted to ascertain her age PW3 Dr. Nidhi Upadhyay proved her supplementary medical report, which is based on pathological and radiological report. The part of pathological report would be referred to at a later stage. Based on the radiological report, according to PW3 Dr. Nidhi Upadhyay, the victim girl was below 11 years of her age. This has not been confronted by the appellant either. PW2 the victim girl herself has been examined in the court. Court has made observation that the girl speaks in lisp. She is a tiny girl. Based on the radiological report, according to PW3 Dr. Nidhi Upadhyay, the victim girl was below 11 years of her age. This has not been confronted by the appellant either. PW2 the victim girl herself has been examined in the court. Court has made observation that the girl speaks in lisp. She is a tiny girl. Therefore, it is also proved that the girl was below 11 years of the age, on the date of incident. 13. A site plan has been prepared and proved by PW8 Sangita. She did not make site plan of the other houses. It is, in fact, a site plan of the house of the appellant, where the offence was committed. But, witnesses have stated that the house of the appellant was at about 20-25 meters away from the house of the victim girl. The house of PW5 brother-in-law and PW6 sister of the victim girl was also in the same locality. There were few houses in between. Therefore, the appellant, the victim and other witnesses were residing in the same locality. It has also come out from the evidence that the appellant was well acquainted with the victim girl and she used to call her “Bhaiya". 14. It is true that according to the FIR, when the victim girl did not return for about 1-2 hours, a search was made, which was also joined by Smt. Savitri Devi and Geeta Pandey, the ward members. Smt. Savitri Devi and Geeta Pandey have not been examined. But, merely because Smt. Savitri Devi and Geeta Pandey ward member, have not been examined, it does not cast any doubt on the prosecution case. 15. A few facts need to be kept in mind, while evaluating evidence in this case, namely; (i) The victim is a girl of young age. (ii) She is handicap. (iii) She is not the biological daughter of PW1 and PW4; she was a abandoned girl, who was found near the bank of Ganges by PW1, who maintained her like his daughter. 16. Arguments have been advanced that there is variation in the statement of the witnesses, as to where, the appellant was caught by PW1. (ii) She is handicap. (iii) She is not the biological daughter of PW1 and PW4; she was a abandoned girl, who was found near the bank of Ganges by PW1, who maintained her like his daughter. 16. Arguments have been advanced that there is variation in the statement of the witnesses, as to where, the appellant was caught by PW1. It is true that according to PW1, the father of the victim girl and PW4 her mother, the victim girl was found at the house of the appellant and appellant, at that time, was trying to run away, when he was caught. According to both these witnesses, at that time, they were also accompanied by their daughter PW6 and son-in-law PW5. But, it is a fact that according to PW5 brother-in-law and PW6 sister of the victim girl, they did not accompany PW1, in search for the victim girl. 17. According to PW5 and PW6 they did not go to the house of the appellant, instead according to them, they saw the victim girl at her house. She was sitting on a chair. In fact, PW6 the daughter of PW1, has stated that when she reached her paternal house, she saw that the appellant was putting the victim girl on a chair and running away. This is nobody's case but these inconsistencies do not doubt the prosecution case either. It is a case of sexual assault upon a girl of young age in a locality. The girl was found bleeding. There were a lot of commotions. People gathered there. They beat the appellant up. The distances are not far. Appellant's house is also in very close proximity to the victim's house. With regard to the time of the incident, there is, in fact, no material contradiction in the statements of the witnesses. As stated, there are some variations, which are insignificant. 18. According to PW4, mother of the victim girl, she telephoned her daughter and son-in-law and then they arrived, whereas, according to PW5 son-in-law and PW6 daughter of PW1, they did not receive any telephone instead PW1 visited their house. But, it is also immaterial and does not cast any doubt on the veracity of any of the witnesses. 19. PW3 Dr. Nidhi Upadhyay is a very important witness in the instant case. After the incident, the victim girl was first taken to hospital by PW1, her father. But, it is also immaterial and does not cast any doubt on the veracity of any of the witnesses. 19. PW3 Dr. Nidhi Upadhyay is a very important witness in the instant case. After the incident, the victim girl was first taken to hospital by PW1, her father. It is PW1, the father of the victim girl, who consented for her examination. She states about it. She has proved the medical examination report. According to PW3 Dr. Nidhi Upadhyay at the time of examination, she found that the hymen of the victim girl was torn; vaginal bleeding was present; fresh in nature; tears over fourchette; posterior vaginal wall measured approximately 2x1 cm in size mucosa deep, tenderness present. 20. According to PW3 Dr. Nidhi Upadhyay two sealed slides vaginal swab were taken by matchstick and sent for examination. PW3 Dr. Nidhi Upadhyay has stated about the pathology report and based on it proved supplementary report Ext.A-5. In the pathological examination report, in the slides, spermatozoa was detected and thereafter PW3 Dr. Nidhi Upadhya opined that it is suggestive of rape. It is to be noted here that after this medical examination was conducted, report was lodged by PW1 father of the victim. 21. PW3 Dr. Nidhi Upadhyay has also stated that there were tears in the area of vagina of the victim girl and she had to treat her and put 2-3 stitches. She was admitted in the hospital. The medical evidence in this case supports the prosecution case. 23. PW2 the victim girl has been examined in the Court. As is revealed, the girl could speak with lisp. She was not able to narrate the incident. Questions were put to her, but one thing is clear from this examination that according to PW2 the victim girl, the bleeding was done on her by the appellant. She used the word “ganda" (bad) to the appellant. 23. PW8 Sangita, is the Investigating Officer. She states that she had given an application for recording the statements of the victim girl under Section 164 of the Code. She proved this application, which is Ext.A-13 and she records in it that the victim girl is unable to speak and her language could be understood by her mother. This is very important. 24. There are a number of lapses in the investigation as also in the prosecution of the case. She proved this application, which is Ext.A-13 and she records in it that the victim girl is unable to speak and her language could be understood by her mother. This is very important. 24. There are a number of lapses in the investigation as also in the prosecution of the case. At this stage, it may be noted that the examination recorded under Section 164 of the Code of the victim girl has not been proved by the prosecution in the evidence. It is also settled law that the Presiding Judge should not be a moot spectator in the trial. Be the system inquisitive or adversial, the Presiding Judge has been invested with the powers to ask any question to any witness. May be if evidence of some witnesses is necessary for the disposal of cases, the Code of Criminal Procedure, 1973 invests Presiding Judge with the authority to summon such witnesses. 25. One fact is clear that the victim girl could speak but with lisp. She was staying with her parents. Her parents could definitely, understand her language. The victim girl indicated in the court that the appellant is “ganda". She indicates in the court that bleeding to her was done by the appellant. PW1, the father of the victim girl and PW4 her mother categorically states that the appellant committed rape upon the victim girl. According to them, they found the victim girl, soon after the incident, bleeding. Medical Examination report supports it. The statement of PW1 father of the victim and PW4 mother of the victim girl transpire confidence. Their statements are reliable, trustworthy and as stated, finds support with the medical evidence, the evidence of PW3 Dr. Nidhi Upadhyay. 26. PW8 Sangita has taken into custody, the clothes worn by the victim and appellant, and also the bed sheet, at which the victim girl was raped, from the house of the appellant, a white bed sheet from the house of PW1 the father of the victim girl, at which the victim girl was laid when she was brought back home after the incident. These articles were sent for forensic science examination. PW3 Sangita, the Investigating Officer has stated about it. This report is on record. Under Section 293 of the Code, it may be read in evidence. These articles were sent for forensic science examination. PW3 Sangita, the Investigating Officer has stated about it. This report is on record. Under Section 293 of the Code, it may be read in evidence. Though it would have been more appropriate to summon the expert in such cases for deposing the methodology, precautions adopted by him. But, it was not done. PW8 Sangita has been questioned on this aspect. She has been cross examined. Prosecution would have produced the evidence as to how those clothes were sealed? When they were sealed? How they were sent to forensic science laboratory? It was not done but again on this count PW8 Sangita had not been questioned. PW8 Sangita, the Investigating Officer has stated that she produced the recovered clothes, bed sheet before the Court on 24.06.2014 for examination. Forensic examination report is on record. According to it, the articles were sent for examination on 24.06.2014 by the court of Special Sessions Judge, Dehradun. The seals on the articles were intact, as per the specimen record. According to forensic science laboratory report, human semen was detected on the shirt of the appellant, jeans pant of the appellant and bed sheet, which were recovered from the house of the appellant. Human blood was also detected from the half pant of the victim, shirt of the appellant, bed sheet, which was recovered from the house of the appellant and bed sheet, which was recovered from the house of the victim. What is important is DNA profiling, which also supports the prosecution case. The conclusions are as hereunder:- CONCLUSION “The DNA test performed on the exhibits provided is sufficient to conclude that: 1. The DNA obtained in single female autosomal DNA profile from the Exhibit-2 (Necker of victim) matches with the single female autosomal DNA profile obtained from the Exhibits-6 (white bed sheet). 2. The DNA obtained in a single male autosomal DNA profile from the Exhibit-4 (Jeans pant of accused) is of a human male. 3. The DNA obtained in a mixed autosomal DNA profile from the Exhibits-3 (shirt of accused), is contributed by the sources of female and male DNA obtained from Exhibit-2 (Necker of victim) and Exhibit-4 (Jeans pant of accused) respectively. 4. 3. The DNA obtained in a mixed autosomal DNA profile from the Exhibits-3 (shirt of accused), is contributed by the sources of female and male DNA obtained from Exhibit-2 (Necker of victim) and Exhibit-4 (Jeans pant of accused) respectively. 4. The DNA obtained in a mixed autosomal DNA profile from the Exhibits -5 (colourfull bed sheet), is contributed by the sources of female and male DNA obtained from Exhibits-2 (Necker of victim) and Exhibit-4 (Jeans pant of accused) respectively." 27. The Court should respect the expert evidence unless it is established that it is dented or the proper methodology or precautions were not followed. In the case of Mukesh and another vs. State (NCT of Delhi) and others, (2017) 6 SCC 1 , 2017 (3) NCC 77 Hon'ble Supreme Court hold that DNA reports deserve to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control of quality assurance. As stated, the PW8 Sangita has been examined on these aspects, but nothing has been elicited, which may doubt or create any dent on the expert report on this count. Therefore, this Court can safely conclude, in the instant case, that the forensic science examination report also supports the prosecution case. 28. In view of the foregoing discussion, this Court is of the view that the learned court below rightly convicted and sentenced the appellant. Therefore, the appeal deserves to be dismissed. 29. The appeal is dismissed.