Delhi District Court
Sc No. 58033/16 State vs Raju Sunar on 18 October, 2016
SC No. 58033/16 State Vs Raju Sunar
IN THE COURT OF SH. GAUTAM MANAN, ASJ-01
NORTH, ROHINI ,NEW DELHI
In the matter of:
S. C. No. 58033/16
FIR No. 282/14
Police Station Mukherjee Nagar
Under Section 377 IPC &
6 & 8 POCSO Act
State
Versus
Sunar
S/o Sh. Naval Sunar
R/o Vagabond, Dusherra Ground
Mukherjee Nagar, Delhi ..... Accused
Date of institution 29.05.2014
Judgment reserved on 09.09.2016
Judgment Pronounced on 13.10.2016
Decision Convicted
JUDGMENT
1. Accused Raju Sunar is facing trial in the present case on allegations of committing repeated penetrative sexual assault on victims P & R boys aged around 14 & 16 years.
Judgment 1 of 19 SC No. 58033/16 State Vs Raju Sunar
2. FIR was registered on the statement of victim P who stated that he was residing on a footpath in a Dusherra Ground with his friend/victim 'R' whom he met in Prayas Children Home. Victim alleged that he and his friend used to have meals at a Bengali Dhaba. There, accused Raju Sunar was doing work of washing utensils and preparing chapatis. Raju used to lure him by saying that victim will get money, if victim would work and on this pretext he used to take victim to Gopalpur forest and used to commit wrong act with him. Raju also committed wrong act with 'R' (friend of victim) 2-3 times. On 18.03.2014 at about 10 pm, accused took victim inside Dusherra ground and forcibly removed his pant. Raju kissed victim. Victim raised alarm and ran away. Outside the ground, a person met him to whom he narrated about acts of accused. That person apprehended Raju and called the police. He was handed over to the police. Victim stated that accused committed wrong act with him many a times and hence, a legal action be taken against him.
Judgment 2 of 19 SC No. 58033/16 State Vs Raju Sunar
3. Accused was arrested and charge-sheeted. Initially charge for the offence punishable under Section 4 POCSO (Protection of Children from Sexual Offences) Act was framed against the accused but keeping in view of allegations of repeated penetrative sexual assault, amended charge for the offence punishable under Section 6 POCSO Act was framed against accused. He pleaded not guilty and claimed trial.
4. Prosecution in all examined 16 witnesses.
PW Name of Nature of Documents proved
witness witness
1 Mukesh Public Met victim near Dusherra
Ground & reported the matter to
police.
2 Victim P Victim Proved his statement recorded by
police as Ex PW2/A
3 Ramesh Public Employer of accused
4 HC Naresh DD Writer Recorded DD, Ex PW4/A
5 Sh. Abhilash Ld. MM Proved statements of victims
Malhotra recorded U/s 164 Cr.PC. as Ex.
PW5/A& B
6 Dr R Doctor Age Determination Test of
Subalakshmi victims, proved report as Ex
PW6/ A & B.
Judgment 3 of 19
SC No. 58033/16 State Vs Raju Sunar
7 Dr Shipra Doctor Same as PW6
8 Dr Abhilasha Doctor Same as PW6
9 Dr R S Mishra Doctor MLC of victims as Ex PW9/A &
B.
10 Dr. Gopal Doctor MLC of victims as Ex PW10/A
Krishna & B.
11 Dr Avinash Doctor MLC of victims as Ex PW9/A &
B.
12 HC Narayan Duty Officer FIR & his endorsement on rukka
as Ex PW12/A & B.
13 Ct Parvesh Police Got accused medically examined.
14 Ct Prahlad Police Proved arrest of accused,
personal search & disclosure as
Ex. PW14/A-C
15 SI Manoj Investigating Recorded statement of victim and
Officer prepared rukka Ex. PW15/A,
Prepared site plan Ex. PW15/B.
16 Victim R Victim Supported prosecution case and
proved his statement Ex.PW5/B
5. On conclusion of prosecution evidence, statement of accused was recorded under 313 Cr.P.C wherein the accused stated that he has been falsely implicated at the instance of Mukesh who was having personal animosity with him.
Judgment 4 of 19 SC No. 58033/16 State Vs Raju Sunar
6. It has been contended on behalf of the accused that the prosecution examined the alleged victims, who in their testimony admitted that they were acquainted with Mukesh (PW1) much before the alleged incident and the Mukesh was having a dispute with the accused. Hence, it is submitted that the testimony of victims which is given at the instance of Mukesh is neither trustworthy nor reliable. It is submitted that there is no medical or forensic evidence to establish the allegations against the accused and hence accused is entitled to be acquitted.
7. Per-contra Ld. Addl. PP has submitted that the statement of victims and other prosecution witnesses are reliable & trustworthy. It is submitted that the prosecution has been able to prove its case beyond reasonable doubt and hence, accused is liable to be convicted.
8. I have heard the rival contentions and have gone through the material on record.
Judgment 5 of 19 SC No. 58033/16 State Vs Raju Sunar
9. Age of victims: Before dwelling upon the incidents of assault, let us find out what was the age of victims at the time of incident. Age-estimation report of the victim R has been proved as Ex. PW6/A as per which the age of victim R was found to be between 12-14 years. As per report Ex.PW6/B, age of victim P was found to be between 14-16 years. Age of victims is not disputed by the defence in any manner nor any document has been brought on record to contradict the reports Ex PW6/A & B. This goes to show that on the date of incident, victims were "Child" within the meaning given under POCSO Act.
10. Statements & testimony of victims : In order to find out whether the testimony of the victims are trustworthy and reliable, let us consider what the victims have stated in their different statements. Initially version of the victim P was recorded by the IO as per his statement Ex. PW2/A. English translation of his statement reads as under:
"I am residing on a footpath in a Dusherra Ground with my friend R for last 2 months. We met in Prayas Judgment 6 of 19 SC No. 58033/16 State Vs Raju Sunar Children Home and came from there about 3 months back. I am native of West Bengal and in 2010, I came to Delhi with a lady. I am not aware about my parents or address. Both of us used to go to Bengali Dhaba to have meals. At Bengali Dhaba, Raju Sunar was doing work of washing utensils and preparing chapatis. Many a times, Raju used to lure me by saying that I will get money, if I would work and on this pretext he used to take me to Gopalpur forest and used to commit wrong act with me. Raju has committed wrong act 2-3 times with my friend R. On 18.03.2014 at about 10 pm, accused took me inside Dusherra ground and he forcibly removed my pant & started kissing me. I raised alarm and ran away. Outside the ground one uncle met me to whom I narrated about Raju. That uncle apprehended Raju and called the police. Raju Sunar was handed over to the police. Accused has committed wrong act with me many a times and a legal action be taken against him."
11. Thereafter, statement of victim P was recorded by Ld. MM under Section 164 Cr.P.C. as Ex. PW5/A. English translation of the same reads as under.
" In year 2010, I came to Delhi for work along with a lady namely Meena. My parents sent me. Meena was also native of Bengal. I worked for 3-4 months at Ranibagh and then left from there. I reside at Dusherra Ground, Mukherjee Nagar. One boy namely Raju used to trouble me. Earlier 2-3 times he had committed anal sex with me and he inserted his urinating part in my mouth. Day before yesterday, I was at Dusherra Ground. At about 10 -11 pm, Raju Judgment 7 of 19 SC No. 58033/16 State Vs Raju Sunar inserted his penis into my mouth. He kissed me and had anal sex with me. Yesterday night also, he tried to have anal sex with me but I managed to escape and went to a flower seller near temple and narrated the incident to him. Flower seller called police. Raju has committed wrong act with my friend R as well. Once I noticed Raju doing wrong act with my friend R under a kambal."
12. Testimony of the victim P was recorded in the Court and in his testimony the victim deposed as under:-
" ............. One Raju Sunar was also working at a Dhaba in the said locality and he used to meet me and R in and around Dussehra Ground. The said Raju Sunar was residing near Dussehra Ground and he was employed in the Dhaba. Said Raju Sunar asked me and R to stay with him. We started staying with him and for two/three days he had given food to both of us. After two/three days, said Raju Sunar committed sodomy upon R and R told this fact to me. One day, said Raju Sunar asked me that he will arrange a job for me and he took me to Gopalpur forest area and committed sodomy upon me in the said area, when I resisted, he threatened to kill me. Said Raju Sunar committed sodomy upon me on four occasions. I do not remember the exact date or month, but it might be in the month of May, though, I cannot say it with conviction, one day at about 10:00 p.m., said Raju Sunar took me in Dussehra Ground, where he removed my pant. Said Raju Sunar started kissing me and he tried to insert his penis in my mouth, but somehow I managed to escape from there and made a noise. Outside the ground one person met me and I told him as to what had happened Judgment 8 of 19 SC No. 58033/16 State Vs Raju Sunar with me. That person made a call to the police. Police reached there and apprehended Raju Sunar and took him with them. My statement was recorded by the police, which is now Ex.PW2/A, which bears my thumb impression at point A. Police took me to a hospital, where I was medically examined. My statement was also got recorded before Ld. Magistrate and I told him whatever had happened with me. Said Raju Sunar committed sodomy upon me four times and every time he used to insert his penis inside my anus and he also used to insert his penis in my mouth....."
13. To attack the testimony of the victim P, Ld. Amicus for accused has pointed out towards cross examination of victim and has argued that in his cross-examination victim admitted that he knew Mukesh for 2-3 months and he used to go to his shop once or twice in a week. A day or two before the incident also victim visited the shop of Mukesh and he knew that Mukesh was acquainted with accused Raju. It has been submitted that victim has further admitted that Mukesh told him that there was a dispute between him and accused and he had told only Mukesh about this incident. It is submitted that the testimony of victim indicates some kind of nexus between victim and the said Mukesh which belies the testimony of victim and discredits his testimony.
Judgment 9 of 19 SC No. 58033/16 State Vs Raju Sunar
14. After going through the different statements of victim P, it emerges that victim is consistent throughout about the acts of accused. Victim in all his statements maintained that the accused took him to Gopalpur Forest Area and committed sodomy upon him. Victim also testified that accused committed oral sex with with by inserting his penis in mouth of victim. In respect of the incident dated 18.03.2014 also victim is consistent in describing the incident that accused took him to the forest area and after removing his clothes, accused tried to sexually assault him.
15. The fact that victim was known to Mukesh (PW1) is also admitted by Mukesh in his testimony. During his cross- examination PW1 admitted that victims were known to him prior to the incident as both of them used to roam in the locality. Accused Raju was also known to him and accused was in visiting terms with him and had even borrowed his bicycle.
Judgment 10 of 19 SC No. 58033/16 State Vs Raju Sunar
16. Merely, the fact that victim was known to Mukesh (PW1) is not sufficient to hold that the victim had deposed at the instance of Mukesh. Victim has described the incident with the understanding of a 14 year old boy and no motive can be attributed to him as to why he would depose against the accused.
17. Similarly, statement of victim R was recorded by Ld. M.M. under Section 164 Cr.P.C. as Ex.PW5/B and English translation of that statement reads as under:
" In 2010, I came from Bengal to Faridabad with a lady to seek employment. There, I worked for some days but I was not given food as such I ran away from there. Then, I started working in a shop of bread. I got fever. Then, I went to Gurudwara. There, people brought me to "Prayas". Then, I escaped from Prayas and came to Dussehara Ground. One boy Raju is troubling me. He committed wrong act with me 2-3 times. 3-4 days back, Raju inserted his penis in my mouth, he kissed me and sodomized me. Out of fear, I did not tell this fact to anybody. My friend P was knowing this incident. He informed his friend about the incident and his friend called the police."
Judgment 11 of 19 SC No. 58033/16 State Vs Raju Sunar
18. In his testimony, victim R deposed as under:
" ...... Two years back, I came to Delhi with a lady for work from my native place Bengal in 2013. We went to Faridabad and then came to Delhi. In Faridabad, I was working in a house as a helper but the said family used to misbehave with me and did not give me enough food to sustain. I escaped from that house and came to Karol Bagh. I started working in a Chola Bhatura Stall. After few days, I left that work and started working in a tea shop. After sometime, I started working in a Bread Pakoras shop. One day, I ate three bread pakaros after which I fell ill and had a fever. I vomited as well. One passerby helped me and gave glucose etc. to me. Then, I went and sat near a Gurudwara. Somebody informed the police and I was sent to Pryas Home. I met victim P in Pryas Home. I managed to escape from there. I started to reside in Dusshera Ground with victim P. We were dependent upon marriage functions for our daily meals and used to eat left over. There was Dhaba near the Dusshera ground and I started working there and I was sharing my meals with victim P at the said Dhaba. Raju ..... was also working in the Dhaba and sometimes he used to prepare meals in his own utensils. On one occasion, I had dinner with the accused. Accused used to commit sexual assault with me and he assaulted me sexually three times on different occasions orally as well as through anal. Within my knowledge, accused also used to sexually assaulted victim P at least 2-3 times. When accused committed sexual assault with me for the first time, he took me to Gopalpur Jungle and inserted his private part in my anus and at that time I had bleeding. Accused on one Judgment 12 of 19 SC No. 58033/16 State Vs Raju Sunar occasion inserted his private part in my mouth. Again on one occasion accused committed anal sex with me. On one night, accused was having an altercation with some other person to whom victim P disclosed that accused used to sexually assault him and thereafter, I also told that person that accused committed sexual assault upon me as well. That person informed the matter to the police. Police came and I narrated the incident to them. My statement was also recorded before a Ld. Judge."
19. If we go through the initial statement of victim Ex. PW5/B, it can be noticed that the victim categorically stated that accused had committed wrong act with him 2-3 times. Accused not only sodomized the victim but he also inserted his penis in his mouth. In his statement victim categorically stated that our of fear he did not disclose acts of accused to anybody but his friend "P" had knowledge of the act of accused.
20. In his examination-in-chief as well victim deposed that accused used to commit sexual assault on him and he sexually assaulted the victim 2-3 times on different occasions orally as well as through anal. During course of his cross-
Judgment 13 of 19 SC No. 58033/16 State Vs Raju Sunar
examination victim testified that out of fear he did not complain about the act of accused to the Dhaba owner and he denied to have known the witness Mukesh prior to the incident.
21. Testimony of the victims, with relation to the incident is reassuring and they are consistent throughout in describing act of accused. Description of the act as given by the victims is accurate and is narrated with the understanding of a 14- 15 year old child.
22. It would be seen that the Court has over the years attributed to the testimony of child witnesses the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the victims are consistent on the material particulars with regard to the incident of sexual assault on them.
Judgment 14 of 19 SC No. 58033/16 State Vs Raju Sunar
23. More so, the testimony of victims also finds corroboration from the deposition of PW1 who testified that the victims told him about their assault by the accused. Despite the cross-examination of this witness no material contradiction came out.
24. Thus, testimony of victims is found to be truthful and reliable and no circumstance has been brought on record to discredit their testimony. Their testimony also finds support from other prosecution witnesses and also from PW1 to whom the incident was reported initially.
25. Delay in FIR: It has been pointed out on behalf of the accused that although victims have alleged that prior to 18.03.2014 they were sexually assaulted by the accused but they did not report the incident to anybody till 18.03.2014 which is fatal to the prosecution and also creates doubt over the allegations made by the victims.
Judgment 15 of 19 SC No. 58033/16 State Vs Raju Sunar
26. True that the FIR was registered on 19.03.2014 despite the fact that victims were sexually assaulted by accused on previous occasions as well but as a matter of fact while appreciating the testimony of victims, it has to be borne in mind that the victims were residing in Delhi without any parental or elderly support. They were dependent to earn two time meal on their daily labor. Apart from that the education and social background of victims did not give them enough maturity to counter the acts of accused and to gather courage to report the matter to police earlier. It is evident from the testimony of victim P that it is only on 18.03.2014, he gathered some kind of courage and after escaping from the clutches of accused, he reached to shop of Mukesh (PW1) and narrated the incident to him. Had not the said Mukesh lent his support to victims, the acts of accused might not have been reported to police at any point of time. Therefore, it is not the case, where victims cooked up a story and implicated accused rather on that fateful day, victim P had Judgment 16 of 19 SC No. 58033/16 State Vs Raju Sunar gathered courage and narrated his plight to Mukesh. In these facts, the conduct of victims cannot be doubted in not reporting the incident earlier.
27. Medical and forensic evidence: It is submitted on behalf of defence that as per MLC of victims Ex. PW9/A & B, no sign of sexual assault was observed. It has been further submitted that as per the medical opinion, the findings are not suggestive of any anal penetration, therefore, it is argued that there is no evidence to suggest any penetrative sexual assault on victims.
28. No doubt that on the MLCs of the victim does not suggest any anal penetration but both the victims, described the incidents of assault by deposing that the accused not only used to commit anal sex on them but he used to insert his penis in their mouth. There can be no medical or forensic evidence to indicate such kind of sexual activity which amounts to committing penetrative sexual assault.
Judgment 17 of 19 SC No. 58033/16 State Vs Raju Sunar
29. As per the settled law of land, the medical evidence in sexual assault cases is only a piece of corroborative evidence and if the testimony of victim is found truthful and trustworthy even in the absence of any medical evidence, accused can be convicted. In present case as well, the testimony of victims is found trustworthy and truthful and the lack of medical or forensic evidence does not dent the testimony of witnesses.
30. Defence of accused: Accused has submitted that due to personal enmity Mukesh had falsely implicated him through the victims but no evidence has been led by the accused to substantiate his defense. Nothing in the testimony of the victims could indicate any ill-will or animosity against the accused. Hence, the accused has not been able to raise any substantial defence to dent the case of prosecution.
Judgment 18 of 19 SC No. 58033/16 State Vs Raju Sunar
31. Thus, from discussions herein above, it emerges that:
i) Prosecution has been able to establish that on the date of incident victims were"child" within the meaning given under POCSO Act.
ii) Victims were sexually assaulted by the accused by threatening them.
iii) PW1 corroborated the chain of events.
iv) Testimony of victims are found to be truthful and consistent in material particulars.
v) Accused failed to establish his defence.
32. Conclusion: Thus, in the light of the testimony of the victims, it is safely concluded that accused Raju Sunar committed repeated penetrative sexual assault on victims and thus, accused stands convicted for offence punishable U/s 6 POCSO Act in respect of sexual assault committed upon both the victims. Matter be listed for hearing arguments on quantum of sentence for 18.10.2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
13.10.2016
Judgment 19 of 19