Delhi District Court
Sc No. 57728/16 State vs . Manoj on 7 February, 2018
SC No. 57728/16 State Vs. Manoj
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No.57728/16)
Unique Identification No. 02404R0005682015
FIR No. 601/14
Police Station Adarsh Nagar
Under Section 377 IPC
& 6 POCSO Act
State V/s Manoj
S/o Ram Mahesh
R/o D2, Mauji Wala Bagh
Lal Bagh, Azadpur, Delhi.
......Accused
Date of institution of case 18.11.2014
Date of arguments 04.12.2017 &
01.02.2018
Judgment Pronounced on 07.02.2018
Decision Convicted
J U D G M E N T
1.The accused Manoj is facing trial in the present case on allegations of having committed penetrative sexual assault upon the Judgment : FIR No. 601/14 page 1 of 25 SC No. 57728/16 State Vs. Manoj victim boy G (identity withheld), aged about 4 years, having committed carnal intercourse upon the said victim boy G.
2. The facts in brief, which are borne out from the record are that the complainant Smt. G alongwith her husband and three sons namely R, aged about 7 years, G aged about 4 years and A aged about 2 years, was residing in Lal Bagh, Azadpur, Delhi. On 08.09.2014 at about 2.00 PM, the complainant was present at her home, alongwith her son / victim G, when the accused Manoj, who was living on the second floor of the house situated opposite to their house, came and took the victim G with him on the pretext of feeding him. As the victim G did not come back for a considerable time, the complainant / mother of the victim went to the house of the accused, and saw the accused Manoj running away from his house, while the victim G was unconscious in the house of the accused. On asking by the complainant, the victim G told her that accused Manoj took him to his room, gave him beatings and removed his underwear and committed carnal intercourse upon him. There were blood stains on the underwear and feet of victim G. Complainant came downstairs alongwith her son / victim G, and public persons gathered in the gali, and someone called the police.
3. On receipt of the information, the police reached the spot and took the victim G to BJRM Hospital. Duty Officer, PS Adarsh Nagar telephonically informed SI Renu about the incident, pursuant whereto SI Renu reached at BJRM Hospital, where SI Afaque Ahmed, Ct. Nagender, Ct. Rahul and the mother of the victim met her. SI Afaque produced the victim before SI Renu and also handed over to her the MLC of the victim Judgment : FIR No. 601/14 page 2 of 25 SC No. 57728/16 State Vs. Manoj bearing no. 85032 and three sealed pullandas containing Rectal Swab, Red Coloured Lower garment and Blue Coloured T Shirt respectively, alogwith the sample seal of the hospital, which were taken into possession by the IO. Statement of the complainant was recorded, on the basis of which Rukka was prepared by the IO and the instant case was got registered. NGO official was called and the complainant was got counselled. IO SI Renu alongwith Ct. Nagender took the victim and his mother to the spot and at the instance of the complainant, prepared the site plan and clicked the photographs of the spot, from her mobile phone.
4. During the course of investigation, at the instance of the complainant, the accused Manoj was arrested from the Bus Terminal, vide his appropriate arrest memo and his personal search was conducted vide appropriate personal search memo. Accused was taken to BJRM Hospital, where his medical examination and potency test was conducted, and the requisite samples i.e. Blood sample in swab, Swab genital and undergarment of accused were sealed, and were taken into possession by the police, alongwith the sample seal. After conducting the potency test of the accused, it was opined by the doctor concerned that there is nothing to suggest that the person examined is not capable of performing sexual intercourse. Accused was brought to the PS and was put in the lockup, and later he was produced before the court concerned, from where he was sent to JC.
5. On 09.09.2014, the complainant was produced before the concerned MM, and on an application moved by the IO, Ld. MM recorded the statement of the complainant, and the IO obtained a copy thereof, by Judgment : FIR No. 601/14 page 3 of 25 SC No. 57728/16 State Vs. Manoj moving another application. The victim and his mother were also produced before the CWC, Kingsway Camp, Delhi. The exhibits / samples of the victim as well as that of the accused were sent to FSL for expert opinion. The ossification test of the victim was got conducted at BJRM Hospital, the statements of the witnesses were recorded and after completion of investigation, the chargesheet was filed in the court.
6. On appearance in the court, the accused was supplied with the copies of charge sheet and other documents, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s u/s 6 POCSO Act and in alternative u/s 377 IPC, on 08.01.2015 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, since the offence which has allegedly been committed by the accused is covered simultaneously under both the heads i.e. u/s 6 POCSO Act and u/s 377 IPC, the charge was amended accordingly, and the amended charge for the offence punishable u/s 6 POCSO Act and u/s 377 IPC was framed, to which accused pleaded not guilty. Ld. Addl. P.P. for the State stated that after framing of the amended charge, no witness was required to be examined afresh, nor any other witness was to be examined afresh. Similarly, Ld. Counsel for the accused stated that after the framing of amended charge, no witness is required to be recross examined afresh, nor any modification in his statement u/s 313 CrPC was required, nor any defence witness was to be examined.
7. To substantiate its case, the prosecution examined fifteen Judgment : FIR No. 601/14 page 4 of 25 SC No. 57728/16 State Vs. Manoj witnesses in all, out of which PW 4, PW 5, PW 6, PW 7, PW 9, PW 10, PW 11 and PW 14 are formal witnesses, PW 8, PW 12, PW 13 and PW 15 are witnesses of investigation, while the PW 1, PW 2 and PW 3 are the material witnesses, being the father of the victim, victim himself and his mother respectively.
FORMAL WITNESSES
8. PW 4 Dr. R.P. Singh, Specialist Forensic Medicine, BJRM Hospital deposed that he conducted the potency test of accused vide his report Ex. PW 4/A, and opined therein that there is nothing to suggest that the patient is incapable of performing sexual intercourse.
9. PW 5 Dr. Neeraj Chaudhary, CMO BJRM Hospital was deputed to deposed in the court on behalf of Dr. Chhitiz, who has since left the services of the hospital and his whereabout were not known. PW 5, after seeing the MLC of the victim G deposed that the patient / victim G was firstly examined by JR Doctor, who referred the patient / victim to surgery department, where Dr. Chhitiz examined the victim, vide MLC Ex. PW 5/A, and PW 5 identified the signatures of Dr. Chhitiz at point A on the said MLC. He further deposed that as per MLC, the child was having abrasion and bruise on his face, and abrasion and tenderness on parianal region, and was also having dialated external anal opening. The anal swab having traces of mucus, blood, stool and undergarment of the accused was seized, and thereafter the patient was referred to forensic expert for further investigation.
Judgment : FIR No. 601/14 page 5 of 25
SC No. 57728/16 State Vs. Manoj
10. PW 6 Dr. R.S. Mishra deposed that on 08.09.2014, patient / victim G was examined by Dr. Imran under his supervision, vide MLC no. 85032, already Ex. PW5/A. He further deposed that on the same day, patient / accused Manoj was also examined by Dr. Imran under his supervision vide MLC no. 85033 Ex. PW6/A. The blood sample, swan taken from genetilia and undergarments of the patient were seized by PW6, and the same were handed over to police, and thereafter the patient was referred for his potency test.
11. PW 7 Sh. Rameshwar S/o Sh. Kali Ram, R/o Lal Bagh, Azadpur, Delhi deposed that on 08.09.2014 at about 2.303.00 PM, he was present at his Rehri, when the complainant and her son, who was having blood stains on his thighs, came to him, and on the asking of the complainant, he reported the matter to police at 100 number. He further deposed that the police reached at the spot and took the victim with them, and his statement was recorded by the IO.
12. PW 9 ASI Samsher Singh deposed that on 08.09.2014, at about 4.10 PM, while posted as Duty Officer at PS Adarsh Nagar, on receipt of an information, through wireless operator, regarding molestation of a 45 years old boy by a man, he recorded the DD No. 66 B Ex. PW9/A, which was handed over to SI Ashfaq telephonically.
He further deposed that on the same day, at about 6 PM, on receipt of a rukka from Ct. Rahul sent by W/SI Renu, he got the instant case FIR registered, and proved the copy of the FIR as Ex. PW 9/B, his endorsement on the rukka as Ex. PW9/C and the certificate u/s 65B Judgment : FIR No. 601/14 page 6 of 25 SC No. 57728/16 State Vs. Manoj Indian Evidence Act as Ex. PW 9/D.
13. PW 10 Ct. Anil Kumar deposed that on 17.09.2014, he took the case property comprising of six sealed pullandas alongwith the sample seal from PS Adarsh Nagar to FSL Rohini, and after depositing the same with FSL, he obtained the acknowledgement receipt Ex. PW 10/A. He further deposed that till the time, case property remained in his possession, it was not tampered with.
14. PW 11 HC Sanjeev deposed that on 09.09.2014, on the instructions of IO, he alognwith the IO took the accused Manoj to BJRM Hospital to get his potency test conducted, and after his examination, accused was produced before the court.
15. PW 14 Inspector Praveen Kumar deposed that on 08.09.2014, after registration of the FIR, he issued a certificate u/s 65 B Indian Evidence Act already Ex. PW 9/D.
16. PW 13 Sh. Sandeep Gupta, the then Ld. MM deposed that on 09.09.2014, on an application being assigned to him, he recorded the statement of the mother of the victim u/s 164 CrPC, which is already Ex. PW 3/D, and also issued a certificate regarding recording of correct version of the witness in the statement. After recording of the statement of the mother of the victim u/s 164 CrPC, he allowed for supply of a copy of the same to the IO, vide his order on the application Ex. PW 13/A. Judgment : FIR No. 601/14 page 7 of 25 SC No. 57728/16 State Vs. Manoj WITNESSES OF INVESTIGATION
17. PW 8 SI Afaque Ahmad deposed that on 08.09.2014, while posted at PS Adarsh Nagar, he alongwith Ct. Nagender and Ct. Rahul reached at the spot, where victim G and his mother were met. Thereafter, he took the victim and his mother to BJRM Hospital, where victim G was got medically examined. In the meantime, SI Renu reached at BJRM Hospital and he handed over the MLC of the victim to her. Three sealed pullandas and one sample seal given by the doctor concerned, were also handed over by Ct. Nagender to SI Renu, who seized the same.
18. In his crossexamination by the Ld. Amicus Curiae for the accused, PW 8 deposed that after reaching the spot, he immediately took the victim to hospital and could not verify the incident from the residents of the locality.
19. PW 12 Ct. Rahul deposed that on 08.09.2014, on the instructions of the IO, he alongwith the IO and Ct. Nagender took the victim and his mother to BJRM Hospital for his medical examination. After medical examination of the victim, three sealed pullandas were handed over by doctor concerned to Ct. Nagender, who in turn handed over the same to the IO. He further deposed that IO recorded the statement of the complainant, and prepared the rukka, which was given to him (PW12), and he took the same to PS to get the case FIR registered. After registration of the case, he handed over the same to the IO.
20. PW 15 IO SI Renu deposed that on 08.09.2014, on being Judgment : FIR No. 601/14 page 8 of 25 SC No. 57728/16 State Vs. Manoj assigned the DD No. 66 B Ex. PW 9/A, she reached at BJRM Hospital, where she met SI Ashfaq, Ct. Nagender and Ct. Rahul. The victim and his mother were produced before her by SI Ashfaq. Ct. Nagender handed over to her three sealed pullandas, which were handed over to him by the doctor concerned, and she (PW15) seized the same vide seizure memo Ex. PW 15/A. She recorded the statement of the mother of the victim, which is already Ex. PW 3/A, and made an endorsement on the same, which is Ex. PW 15/B. She prepared the rukka and handed over the same to Ct. Rahul for registration of the FIR. She inspected the spot, and at the instance of the complainant, prepared the site plan Ex. PW 15/C, and clicked the photographs of the spot Ex. P1 to P6. On the instance of the complainant, she arrested the accused vide arrest memo already Ex. PW3/B, conducted his personal search vide personal search memo already Ex. PW3/C and recorded his disclosure statement Ex. PW 15/D. She also got the accused medically examined at BJRM Hospital and his exhibits were seized by her vide seizure memo Ex. PW15/E, and were deposited with MHC(M). She further stated that on 09.09.2014, accused was produced in the BJRM Hospital for his potency test. On the same day, she got the statement of the mother of the victim u/s 164 CrPC recorded before the Ld. MM, by moving an application Ex. PW 15/F, and obtained a copy thereof by moving another application already Ex. PW 13/A. On 15.10.2014, she also produced the victim G before the Ld. MM for recording of his statement u/s 164 CrPC, but due to tender age of the victim, his statement could not be recorded. She further stated that since no age proof of the victim was provided by his parents, his ossification test was got conducted and the doctor concerned in his report Ex. PW Judgment : FIR No. 601/14 page 9 of 25 SC No. 57728/16 State Vs. Manoj 15/G, opined the age of the victim between 3 to 4 years. She also obtained the FSL report and placed on record as Ex. F1.
21. In her crossexamination by the Ld. Counsel for the accused, she stated that she arrested the accused on 08.09.2014 at about 6.15 PM, from Azadpur Bus Terminal, on receipt an information from the Duty Officer.
MATERIAL WITNESSES
22. Mr. A, father of the victim G, entered the witness box as PW 1 and deposed that on 08.09.2014, his wife telephonically informed her that their neighbour Manoj had committed wrong act with their son G, and since at that time, he was out of Delhi, he reached home in the next morning. On 09.09.2014, he accompanied his wife and son to Rohini Court, where the statement of her wife was recorded by the Ld. MM.
23. In his crossexamination, PW 1 deposed that he was unable to tell as to who was the owner of mobile no. 8860595884. He deposed that he was not having family terms with the accused, nor was he having any water dispute with the accused. He denied that waste water used to flow from his jhuggi towards the jhuggi of accused or that on many occasions, he had a quarrel with the accused. He denied that nothing wrong had been done with his son, by the accused.
24. The prosecution, to substantiate its case, examined the victim G as PW 1. After conducting preliminary examination of the victim by putting Judgment : FIR No. 601/14 page 10 of 25 SC No. 57728/16 State Vs. Manoj certain questions to her to assess the competency of victim child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
"I know accused Manoj (present in the court today and identified correctly through wooden partition). On the date of incident, he took in his room and removed my Kachi. Thereafter, he put his penis in my anus (witness has pointed out towards his back side). He also gave beatings to me. I told this incident to my mother."
25. In his crossexamination by the Ld. Counsel for the accused, the victim / PW 1 deposed as under :
"Infact, the accused put his urinary part in my anus that is why I am telling so. "
26. The mother of the victim entered the witness box as PW 2 and deposed as under :
"I have 3 children, victim G aged about 5 years is my second born child. Today I do not remember the date of incident but it happened around 1.5 years back. On the date of incident at about 2 pm, I was preparing meals and my son G was playing nearby me. At the same time, accused Manoj (Present in the Court today and correctly identified by witness) who was residing on the second floor of building in front of my house arrived and took my son along with him to play with him. After some time, when my son did not return I Judgment : FIR No. 601/14 page 11 of 25 SC No. 57728/16 State Vs. Manoj went to the house of accused Manoj. At the same time, accused rushed out of his room and my son came out of his room in perplexed condition and he was crying. When I asked my son G as to what has happen, he narrated the whole incident to me. He told me that accused gave beatings to him and has done wrong act with his anus. He told me that when he started crying in pain accused left him and ran from there. I noticed that there was blood on the legs of my son. I got scared and took my son downstairs. Public persons gathered. Somebody called police. Police took me and my son to hospital. My son was medically examined and my statement was recorded by IO. Same is now Ex. PW3/A bearing my thumb impressions at point A. Thereafter, we were taken to a house by the police. I had shown room of accused to IO and photographs of spot was taken by police and IO prepared site plan. Thereafter, I left victim G in the custody of my mother in law and accompanied IO to Azadpur Bus Terminal. There I pointed out towards the accused and accused was apprehended by the IO.
Accused was arrested in my presence. The arrest memo of the accused is bearing my thumb impressions at point A and same is Ex. PW3/B and personal search memo of accused is bearing my thumb impressions at point A and same is Ex. PW3/C. My statement u/s 164 Cr.P.C. was also recorded before Ld. Judgment : FIR No. 601/14 page 12 of 25 SC No. 57728/16 State Vs. Manoj MM.
At this stage, an envelope is opened sealed with the seal of SJ and a statement U/s 164 Cr.P.C. is taken out. Witness has been shown the statement and she identifies her signatures at point A and the same is Ex. PW3/D."
27. In her crossexamination by the Ld. Counsel for the accused, the mother of the victim / PW 2 deposed as under :
" I was not having mobile phone at the time of incident as such I requested a person from the locality to call the police. At about 3 PM, my son told me that accused had committed wrong act with him. It is wrong to suggest that on the date of incident, the accused did not come to our house or that he did not take victim with her. It is wrong to suggest that accused did not commit any wrong act with her. It is wrong to suggest that accused did not commit any wrong act with the victim or that he has been falsely implicated by us as we were having a dispute with the family of accused.
28. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and pleaded his innocence. He further stated he has been falsely implicated in this case by his neighbour after a quarrel had taken place between them.
Judgment : FIR No. 601/14 page 13 of 25
SC No. 57728/16 State Vs. Manoj
29. I have heard Ms. Neeta Gupta, Ld. Addl. PP for the State on and Sh. Arun Sherawat, Ld. Amicus Curiae for the accused. Ld. Addl. P.P. for the State has contended that the victim as well as other material witnesses, being the mother and father of the victim, have supported the prosecution case in its entirety. The victim has categorically identified the accused to be the culprit and has also described the act / sexual assault, to which he was subjected, very vividly. The testimony of mother of the victim is very explicit that soon after the commission of offence, she found her son crying and he narrated the entire incident to his mother, and she in her testimony has reproduced the same convincingly. The mother of the victim has also deposed about the blood being present on the legs of the victim, which finds corroboration from the MLC of the victim. The carnal intercourse, to which the victim child was subjected, is also very vividly corroborated from the MLC of the victim and testimony of PW 5, who deposed about the child having abrasion and bruise on face and dilated external anal carnal with tenderness. It is further contended that the chain of events which led to the arrival of police, on receipt of the information from a public person, who also deposed about the victim having blood stained thighs soon after the incident, go to the root of the matter. The reporting of the offence to the police and investigation thereafter has been a prompt one, and the guilt of the accused is proved to the hilt, by the prosecution.
30. Per Contra, Sh. Arun Sherawat, Ld. Amicus Curiae for the accused has stated that the accused has been falsely implicated in the instant case by the parents of the victim, through their minor child, due to a neighbourhood quarrel between them and the accused. Thrust was laid Judgment : FIR No. 601/14 page 14 of 25 SC No. 57728/16 State Vs. Manoj on the fact the FSL result, which has been filed in the instant case, and it is contended that as per FSL result, semen could not be detected on exhibits of the victim including the anus swab of victim and the genital swab of the accused, which were seized, which is a pointer that no sexual assault, as alleged, was ever committed upon the victim boy, by the accused. It is stated that the accused is innocent and that he be acquitted in the instant case.
31. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
32. To ascertain the age of the victim G, his ossification test was got conducted at BJRM Hospital, as the parents of the victim were unable to produce any age proof of the victim boy G. The ossification test report of the victim has been brought on record by PW 15 IO SI Renu as Ex. PW 15/G. The perusal of the ossification test report of the victim child G Ex. PW 15/G reveals that a board of three doctors conducted the ossification test of the victim child on 14.11.2014 and after examining the victim, the board was of the unanimous opinion and it was opined by the board that "on the basis of Physical, Dental and Radiological Examination, the probable age of person examined is between 3 to 4 years.
33. The said ossification report Ex. PW 15/G and the aforementioned Judgment : FIR No. 601/14 page 15 of 25 SC No. 57728/16 State Vs. Manoj opinion given by the board of doctors in the said report, has not been controverted on behalf of the accused, as not even a single suggestion to controvert the same, has been given to the IO, who brought on record the ossification test report of the victim on record. The age of the victim is, therefore, accepted to be between 3 to 4 years, on the date of alleged incident i.e. 08.09.2014, and hence he is a "Child" within the meaning given under section 2 (d) of the POCSO Act.
34. Medical and forensic Evidence : The medical evidence, which came to the fore in the instant case, is in the form of the MLC of the victim G, which was proved on record by PW 5 Dr. Neeraj Chaudhary, CMO BJRM Hospital as Ex. PW 5/A, which shows that firstly the victim G was examined by Junior Resident Doctor, and on local examination of the victim, it was opined by the doctor concerned that the child was having multiple bruises on both cheeks, and he was having dilated external anal carnal with tenderness, mild bleed and blood stained mucus. Subsequently, the victim was referred to Surgery department, where he was examined by Dr. Chhitiz, who gave his observation from point X to X1 on the MLC Ex. PW 5/A, wherein it has been opined that the child was having abrasion and bruise on face, abrasion and tenderness on perianal region and irregular / dilated external anal opening. The Rectal swab having traces of mucus, blood and stool and the wearing garments of the victim, were sealed and handed over to the IO. Thereafter the patient was referred to forensic expert for further investigation and opinion.
The accused was also got medically examined at BJRM Judgment : FIR No. 601/14 page 16 of 25 SC No. 57728/16 State Vs. Manoj Hospital vide MLC Ex. PW 6/A, wherein it was opined that no fresh physical injury was found on his person. The blood sample of the accused, and swab taken from his genitalia and his undergarments were sealed and sent to FSL for expert opinion. Thereafter, the potency test of the accused was got conducted and PW 4 Dr. R.P. Singh, Specialist Forensic Medicines, BJRM Hospital, who conducted the potency test of the accused, proved on record the potency test report of the accused as Ex. PW 4/A, wherein it has been opined by him that there is nothing to suggest that the person examined by him is not capable of performing sexual intercourse.
35. The exhibits of the victim as well as that of accused were sent to FSL for expert opinion, and the FSL result Ex. F1 was brought on record by the IO and the result of the analysis reads as "Alleles from the source of exhibit '4' (Blood sample on gauge) of accused were not accounted in the alleles from the source of exhibits "1" (Rectal swab) & '2' (underwear) of victim."
TESTIMONY OF MATERIAL WITNESSES
36. Mr. A (father of the victim), victim G and his mother Smt. G, being the material witnesses, have been examined in the instant case as PW 1, PW 2 and PW 3 respectively. The complaint Ex. PW 3/A was made by the mother of the accused on the day of commission of offence itself at around 6 PM, soon after the commission of offence, which was committed, as per the complainant, at around 3.00 PM. It is the consistent Judgment : FIR No. 601/14 page 17 of 25 SC No. 57728/16 State Vs. Manoj testimony of PW 3 that in the afternoon at about 2.00 PM, she was preparing meal, while her son / victim G was playing nearby, and the accused herein, who has been correctly identified by the witness and who was residing on second floor of the building in front of her house, came there and took the victim with him, to play with him, and when the child did not return for sometime, she went to the house of the accused Manoj, and on seeing the mother of the victim, accused rushed out of his room, while the victim child came out of his room in perplexed condition, crying, and he narrated the entire incident to his mother. In the cross examination of the said witness by the Ld. Counsel for the accused, it is not disputed that the accused was living on the second floor of the building situated in front of the house of the complainant, and therefore the proximity of the accused with that of the victim and his house, is not disputed at all. The victim, examined as PW 2, duly corroborated the version of his mother, categorically stating that he narrated the entire incident to his mother.
37. As regards, the narration of incident is concerned, the victim boy, aged about 5 years (at the time of recording of his testimony) has categorically stated that accused had taken him to his room, where he removed his underwear and put his penis in his anus, and has also given beatings to him. In his crossexamination by the Ld. Counsel for the accused, the child very emphatically stated that the accused had put his urinary part in his anus. In the testimony of PW 3, the further elaborated description of the act came forth, that the child told her that when the child started crying in pain, the accused left him and ran away and she noticed blood on the legs of her son. This factum of the child having told Judgment : FIR No. 601/14 page 18 of 25 SC No. 57728/16 State Vs. Manoj about the incident to his mother, crying out in pain and only thereafter the accused left him, has not been controverted on behalf of the accused in the crossexamination of PW 3. It is also not disputed that there was blood on the legs of the victim, which was noticed by the mother of the victim. This factum about there being blood present on the legs of the victim, is also testified by PW 7 Sh. Rameshwar, who also categorically deposed that son of the complainant (victim G) was having blood stains on his thighs. The said fact has not been challenged by the accused in the crossexamination of the said witness PW 7 Sh. Rameshwar. Except for a suggestion given to the mother of the victim that accused did not commit any wrong act with the victim but he has been falsely implicated as there was a dispute between the family of the accused and the family of the victim, which was denied by PW 3, there are no details of the dispute, if so, mentioned either in the crossexamination of the said material witness or in the statement of the accused u/s 313 CrPC recorded in the court. Even PW 7, who was also present at the spot and has deposed about blood being present on the thighs of the victim at the relevant time between 2.30 PM to 3.00 PM, was though crossexamined on behalf of the accused, but has not been given any suggestion regarding any previous dispute, if any, between the accused and the family of the victim.
38. The MLC of the victim Ex. PW 5/A finds a categorical mention of multiple bruises on both the cheeks of the victim and the victim having irregular dilated external anal opening, with tenderness on perianal region. It was the emphatic testimony of the victim that he was slapped on both the cheeks by the accused and the multiple bruises on the Judgment : FIR No. 601/14 page 19 of 25 SC No. 57728/16 State Vs. Manoj cheeks of the victim, as described in the MLC, corroborate the version of the victim, clearly.
39. The second act of the accused is of inserting his penis in the anus of the child, and the child crying out in pain and thereafter the accused leaving the victim, came forth in the testimony of PW 2 and PW 3, and finds a thorough corroboration from the observations made in the MLC of the victim Ex. PW 5/A regarding the anus of the child having tenderness and dilated external opening. The penis of a man is obviously thick and of a diameter, which on an attempt being made to insert into the soft and tight anal opening of a 34 years old child, would obviously cause him immense pain and would dilate the anal canal. PW 5 has not been cross examined by the accused despite opportunity having been granted, with the result that the said injuries being present on the body of the victim, are not disputed by the accused.
40. It is noteworthy that except for giving a suggestion to PW 3 in her crossexamination that the accused did not take the victim to his room, his own whereabout / presence in his house on the date of alleged incident, has not been disputed by him either in his statement u/s 313 CrPC or by leading any independent evidence, in this respect. Admittedly, the accused was residing on the second floor of the building opposite to the house of the complainant, and he not having disputed his presence in his house on that day during the afternoon hours, when the offence was allegedly committed, the presence of the accused in his room stands established.
Judgment : FIR No. 601/14 page 20 of 25
SC No. 57728/16 State Vs. Manoj
41. The only contention, which was laid thrust upon, on behalf of the accused during the course of arguments, is that as per the FSL result, semen of accused was not found on the exhibits of the victim, which were sent for analysis. It would not be out of place to mention that in the instant case the accused has been charged for the offence u/s 6 POCSO Act and u/s 377 IPC, and for ready reference, the relevant sections describing the act punishable under the said two acts, are being reproduced as under :
Section 3 POCSO Act : Penetrative sexual assault. A person is said to commit "penetrative sexual assault" if
(a) he penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
Section 377 IPC. Unnatural offences. Whoever voluntarily Judgment : FIR No. 601/14 page 21 of 25 SC No. 57728/16 State Vs. Manoj has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with (imprisonment for life) or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
42. The bare reading of the said provisions of law, it is clear that making penetration to any extent is sufficient for a person to be roped in an offence of penetrative sexual assault u/s 4 / 6 POCSO Act or u/s 376/377 IPC. In none of the said sections, ejaculation of semen is a sine qua non for the said offences to be committed.
43. In the case in hand, the fact that the penetration did take place, is quite evident from the medical status of the victim's anus, which as per the MLC Ex. PW 5/A was dilated and there was tenderness, mild bleed present on the anus of the child, which quite vividly establishes that there was a penetration into the anus of the child by a thick object, and as described by the victim and his mother, it was the penis of the accused. No other explanation regarding the said corroboratory injuries being present on the cheeks and anus of the child, came forth from the accused.
44. In the statement of the accused u/s 313 CrPC, when the said Judgment : FIR No. 601/14 page 22 of 25 SC No. 57728/16 State Vs. Manoj factum about the child's medical condition was put to him, in question no. 15, he, except for stating that he did not know about it, did not give any explanation as regards the presence of injuries on the person of the child. It would not be out of place to mention that in a congested neighbourhood, where the victim and the accused were admittedly living at the relevant time, if such an incident takes place, each and every person living in the neighbourhood, knows as to what has happened, PW7 being one of such public person / neighbour. It is strange that a person living on the second floor of the building opposite to the house of the complainant, was totally unaware about the child's condition or such an incident having taken place with the victim child, as is clear from the answers, which have been given by the accused, that he has no knowledge about the child's medical condition.
DEFENCE OF THE ACCUSED
45. In his statement u/s 313 CrPC, in response to question no. 36, as to whether he had anything else to say, the accused has merely stated that he has been falsely implicated by a neighbour, as a quarrel had taken place between them. He has neither named the neighbour nor has he given the details of the quarrel as to what had happened and on which date and day, or whether it was prior to the incident in question or after the incident. Accused has opted not to lead defence evidence, to corroborate his version, that there was actually a quarrel between him and the family of the victim, which led to his false implication in the instant case.
46. On the face of such a sham defence having been put forth, by the Judgment : FIR No. 601/14 page 23 of 25 SC No. 57728/16 State Vs. Manoj accused, the unflinching testimony of the victim and his mother, with the detailed account of penetrative sexual assault, to which the victim was subjected at the hands of the accused, inspires total confidence and there is no reason to disbelieve the version of the victim. PW 3 stood the test of grilling crossexamination and has also deposed on the lines of her complaint and her statement u/s 164 CrPC and there is no reason to doubt her version.
47. Investigation carried out by the investigating agency in the instant case was a prompt and effective one, with the accused having been arrested at the pointing out of the mother of victim, on the same day from the bus terminal, which also corroborates the version of the victim and his mother that the accused ran away from the house.
48. In view of my discussions above, it emerges that :
(i) on the day of incident i.e. 08.09.2014, the victim was about 34 years of age;
(ii) on the date of incident the accused was present in his house and he took the victim G from his house, to his house situated on the second floor of the building, in front of the house of the complainant.
(iii) Testimony of the material witnesses i.e. victim (PW2) and his mother (PW3) and his father (PW1) is reliable and trustworthy,
(iv) The witnesses of investigation have corroborated the chain of events and complaint to the police is a prompt one.
Judgment : FIR No. 601/14 page 24 of 25 SC No. 57728/16 State Vs. Manoj (v) that the accused had subjected the victim boy G to
penetrative sexual assault / carnal intercourse.
(vi) that the accused ran away from the spot on seeing the mother of the victim and was subsequently arrested at the instance of the complainant / mother of the victim.
(vii) Accused failed to establish his defence.
49. Conclusion : In the light of my discussion above, the testimony of prosecution witnesses is found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused had committed Aggravated Penetrative Sexual Assault upon the victim, aged around 34 years (below the age of 12 years) on the date of incident i.e. 08.09.2014, by committing carnal intercourse upon him and therefore the accused is liable to be convicted for an offence of aggravated sexual assault as described u/s 5 (m) of the POCSO Act, and punishable U/s 6 of POCSO Act and for the offence punishable u/s 377 IPC.
50. Accordingly, the accused Manoj is convicted for the offences punishable U/s 6 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 377 IPC.
51. Matter be listed for arguments on the quantum of sentence on 12.02.2018.
Announced in the open court
today i.e. on 07.02.2018 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 07.02.2018
Judgment : FIR No. 601/14 page 25 of 25