Delhi District Court
Fir No. 485/15 State vs . Sonu Sharma on 9 May, 2018
IN THE COURT OF RUBY ALKA GUPTA
ADDL. SESSIONS JUDGE-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Sessions Case No. : 9126/16
FIR No. : 485/15
Police Station : Sagarpur
Under Section : 377/506 IPC & 4/6 POCSO Act
Chargesheet Filed On : 21.09.2015
Judgment Reserved On : 09.05.2018
Judgment Announced On : 09.05.2018
State
Versus
Sonu Sharma
S/o Late Sh. Ram Sharma
R/o Village-Bhandodi, P.S Mala Khera
Tehsil & Distt. Alwar
Rajasthan.
JUDGMENT
1. It may be stated at the outset that the name of the victim child, his family members and any other person or place, capable of identifying the victim child, are not stated as his identity is not to be disclosed in view of Clause 7, Section 33 POCSO Act. The child shall be referred to X, for the purposes of this judgment.
Proceedings before the Court:
2. FIR was registered regarding the cousin chacha of the victim sodomizing him. and the matter investigated. Upon completion of investigation, chargesheet was filed. My Ld. Predecessor took cognizance of the offence. Copies of the chargesheet were supplied to the accused. After hearing the parties, my Ld. Predecessor charged the accused under Sections 377/506 (2) IPC and Section 6 POCSO Act. The charge clearly states that the FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 1 of 8 accused was the cousin brother of the father of the victim and had committed penetrative sexual assault with the victim who was aged about 11 ½ years and that the accused had also threatened to kill him if he disclosed the incident to anyone.
3. The Prosecution examined six witnesses (PW1 to PW7, no witness was examined as PW2). Certain documents were admitted on behalf of the accused under Section 294 Cr. P.C. Statement of the accused was recorded under Section 313 Cr. P.C. The accused chose not to lead any evidence in his defence. Submissions on behalf of the parties were then heard. File has been perused.
Facts of the case:
4. It is stated that the accused was visiting the family of the victim. On 22.06.2015, none else from the family was at home. The accused came after taking a bath with only a towel wrapped around his waist. He entered the room in which the victim was watching T.V. The accused closed the door and bolted it. He caught hold of the victim and forcibly took off his nicker. He then sodomized the victim. The victim states that he tried to free himself but the accused did not let him go. The accused then threatened to kill the victim if he revealed the incident to anyone. The victim further states in the complaint that he did not tell anyone out of fear. Whenever he used to go to latrine, he used to feel pain. Ultimately, on 26.06.2015, when he again felt pain while doing latrine, he told his father who then took him to the police station.
5. The victim visited the police station along with his father in the night of 25.06.2015 and lodged a complaint regarding unnatural intercourse with him by his cousin chacha, the accused herein. W/SI Asha/PW6 recorded the statement of the victim/Ex.PW1/A, endorsed the same vide Ex. PW 6/A and prepared the rukka. The DO registered the FIR/Ex. P-1 (document admitted by the accused under Section 294 Cr. P.C). Further investigation was carried out by SI Vijay Pal/PW7. The victim was got medically examined 26.06.2015. His MLC/Ex.P-2 (document admitted by the accused under Section 294 Cr. P.C) was prepared and he was referred to surgery department. A note/Ex. P-3 FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 2 of 8 (document admitted by the accused under Section 294 Cr. P.C) was prepared by the surgery department. The samples taken by the doctor and the sample seal was seized by the IO vide seizure memos/Ex. PW 7/A and Ex. PW 7/B.
6. The IO prepared a site plan/Ex. PW 7/C at the instance of the victim. SLC of the victim/Ex. PW 7/E was handed over to the IO by the father of the victim and the IO took possession of the same vide memo/Ex. PW 7/D. Notices under Section 160 Cr. P.C were issued to the relatives of the accused who produced the accused in the PS. The accused was interrogated and then arrested vide arrest memo/Ex. PW 7/F. He is stated to have made a disclosure statement/Ex. PW 7/G. He was got medically examined vide MLC/Ex. PW 7/H. Samples taken by the doctor were seized along with the sample seal vide memo/Ex. PW 7/I. The accused is stated to have pointed out the spot vide memo/Ex. PW 7/J. Statement of the victim was got recorded under Section 164 Cr. P.C/Ex. PW 1/B vide proceedings/Ex. P-7 (document admitted by the accused under Section 294 Cr. P.C). The IO served a notice under Section 91 Cr. P.C/Ex. PW 7/K upon the Principal of the victim's school and seized the age documents/school record/Ex. P-4 (colly) (document admitted by the accused under Section 294 Cr. P.C). The samples were deposited with the FSL by Ct. Banwari/PW 5 vide RC No. 79/21/Mark PW 5/A (copy thereof). The receipt of the samples by the FSL was acknowledged vide slip/Mark PW 5/B (copy thereof). The FSL report/Ex. PX (document admitted on behalf of the accused vide statement of his counsel dated 10.08.2017) was received.
Contentions of the Defence:
7. The Ld. Counsel for the accused has submitted that the accused has been falsely implicated. There are contradictions in the testimonies of the witnesses. The MLC reveals that there was no external injury. The FSL report is also stated to favour the accused. The accused is stated to have not been identified by the victim. The commission of the offence is stated to have been denied by the accused in the Statement recorded under Section 313 Cr. P.C. The Ld. Counsel relies upon State of NCT of Delhi Vs. Sudhir Kumar @ Bunty in support of his contention that the contradictions and improvements materially affect the case of the prosecution and that it is difficult to place reliance on the evidence of the FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 3 of 8 prosecution witnesses.
Contentions of the State:
8. The Ld. Addl. PP has submitted that the victim has admitted all the facts comprising the offence but has stated that he had made all the said allegations falsely. It is stated that he has been won over by the accused due to the relation between the victim and the accused. It is stated that he has nevertheless, admitted the pain felt by the victim. The FSL report, it is contended, cannot be said to be in favour of the accused. It is stated that no semen could be detected and thus the same is not incriminating. It is pointed out by the Ld. Addl. PP that the samples were taken after four days of the incident. The victim is stated to have been referred to the surgery department at the time of his medical examination. It is thus stated that the prosecution has proved its case and that the accused be convicted.
Evidence led by the Material Witnesses:
9. As PW1, the victim has stated that his Bunty chacha (son of his father's mausi) and one Sonu chacha had come to their house. Bunty chacha went after some time. Sonu chacha used to quarrel with the victim for watching T.V and used to snatch the remote from the victim. Further that, he used to ask the victim to do the wrong act with him. One day, the victim did not remember the date or month, the victim was watching T.V and refused to hand over the remote to his Sonu chacha. Said chacha snatched the remote and gave a blow on his anus due to which the victim experienced pain. He told his mother, who in turn told the father of the victim. The victim further states that he was in anger and had told his mother that Sonu chacha had committed carnal intercourse with him though he had not done any such thing. Father of the victim took him to the PS where the statement of the victim was recorded. He was thereafter medically examined and, the victim states, surgery was also conducted on his wound. His underwear was taken by the doctor. He admits showing the place of incident to the police and making his statement under Section 164 Cr. P.C. The victim however, did not identify the accused as his Sonu chacha.
FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 4 of 8
10. The victim was cross examined on behalf of the State. In such cross examination, he stated that the incident had taken place on 22.06.2015 and that Sonu chacha was the son of his father's maternal uncle. He admitted that Sonu chacha had come to their house. He denied the other facts regarding the offence while admitting that he had stated those facts to the police and in his statement recorded under Section 164 Cr. P.C. He reiterated that he was in anger with Sonu chacha for having taken his remote and for having hit him on his anus. He further admitted that Sonu chacha had threatened to kill him if the victim disclosed the facts to anyone and that due to fear he had not told anyone. He further admitted that he felt pain when he used to go to the latrine, and that he had told his family members when he was in severe pain. He also admitted that he told the facts to his parents after 2-3 days of the incident and that his anger continued a couple of days after the registration of the case. He admitted the the doctor had put a solution on his wound at the anus. He denied the suggestion that his injury could not have been sustained by a blow of the T.V remote. He denied that he was deposing falsely or that he had deliberately not identified the accused as his chacha. The victim was not cross-examined on behalf of the accused.
11. Father of the victim deposed as PW 4. He stated that he had been told by his mother on 26.06.2015 that the son of his maternal uncle had come to their residence and quarreled with the victim. He identified the accused as Sonu, the son of his maternal uncle. He further deposed that his mother had told him that the accused had committed the wrong act with his son whereupon he took his son to the PS. The witness was cross-examined by the Ld. Addl. PP. In such cross-examination, the witness/father of the victim stated that his statement was not recorded by the police. He denied that his mother had told him that the accused had threatened to kill his son if the victim told about the incident to anyone. He denied having told the police the same but was duly confronted with his statement recorded by the police/Ex. PW 4/A. The father of the victim admitted that the victim had not disclosed the facts for 3-4 days due to fear and that he disclosed the same to his grandmother on having severe pain in his anus. He denied that the statement of his son was recorded in his presence though he admitted that the same bore his signature. He stated that he had signed the said statement at the instance of police officers. In the cross- examination conducted on behalf of the accused, the witness admitted that he had not been FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 5 of 8 told about the incident by his son and that he had been told about the same by his mother. He further stated that he had not inquired from his son if any quarrel had taken place between his son and the accused with regard to the T.V remote.
12. The grandmother of the victim deposed as PW3. She stated that she did not remember the date. She nevertheless stated that it was in the summer season last year (she deposed on 11.02.2016). She stated that she had gone to the hospital with her daughter-in- law and came back about 12.30/1.00 p.m. Her grandson came to her crying and she sent him to his mother. He came again crying whereupon she asked him the reason but he did not tell anything. After about 3 days, her grandson/victim told her weeping that the accused i.e Sonu chacha had committed unnatural sex with him and that the victim was experiencing pain in his anus due to the said act of the accused. She asked him to take off his clothes and saw that there was an injury at the anus. She told her son when he came back in the evening, who then took the victim to the police station. With permission, the Ld. Addl. PP had put a leading question to her and the witness stated that her grandson may have told her the facts on 26.06.2015 and that he had told her that the incident took place on 22.06.2015. She also identified the accused. Nothing material has been extracted in the cross-examination conducted by the defence. The witness has specially denied the suggestion that she is deposing falsely to falsely implicate the accused. She has also denied the suggestion that the victim did not tell her anything or that no such incident had taken place.
Observation of the Court on age and on merits:
13. The age documents of the victim have been admitted by the defence. The attested copy of the affidavit of the mother filed at the time of seeking admission and the attested copy of the application form for the purpose along with the attested copy of the relevant page of the Admission and Withdrawal Register have been admitted as Ex. P-4 (colly). These documents pertain to the admission of the victim in the first class and contain the date of birth of the victim as 16.02.2002. The incident as per the State case had taken place on 22.06.2015. The victim would thus have been about 4 months more than 13 years at that time. POCSO Act is thus attracted.
FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 6 of 8
14. The father and the grandmother of the victim have, more or less, supported the State case. They have also identified the accused as the chacha referred to by the victim as the offender. The victim himself, however, has not identified him. The victim has thus evidently deposed falsely while not identifying the accused. Though it is evident that he has falsely deposed in this regard, the same cannot be said for his deposition on the incident itself.
15. It has been contended by the State that the victim has been won over by the accused due to the relation. The said contention would have sounded correct had neither of the family member supported the State case. The situation in this case is unique. The elder members of the family members have deposed against the offending family member. In case of incest, the child victim is pressurized generally by parents and other members of the immediate family. When such members are not themselves hostile, it cannot be accepted that they pressurized the child to not depose against the offender. The facts stated by the victim child in is deposition appear to be closer to the truth.
16. The victim has stated that the incident as complained of by him did not take place. He has stated that he had made a false complaint as he was angry with his chacha for having taken his remote and for having hit him at his anus. He claimed that it was paining and had been paining for the past 3-4 days. The victim has also claimed that the doctor had applied a solution on his wound. The MLC of the victim/Ex. P-2 belies any such claim, though he was administered Ibugesic, which is a pain killer. The note of the surgery department/Ex. P-3 also does not note anywhere that any medicine was applied. In fact, there was no sign of any injury, not even an injury mark. There was no bleeding nor any anal fissure. The anal tone too was normal. The observations contained belie any claim of any injury received by the victim at the said body part. Even if it is considered that the medical examination was conducted about 3-4 days after the incident, there should have been at least some soreness at the body part. But none was seen. The medical evidence thus does not support the case of the State. The forensic evidence admittedly does not contain any observations which would incriminate the accused.
17. Though the father and the grandmother of the accused have deposed that the victim FIR No. 485/15 State Vs. Sonu Sharma PS Sagarpur Judgment dt. 09.05.2018 U/s 377/506 IPC & 4/6 POCSO Act page 7 of 8 told them that the accused had committed carnal intercourse with him, the accused cannot be convicted on their statements only. The victim has clearly stated that he had made a false complaint in anger. Both the grandmother and the father had been told about the incident by the victim, at a time when the victim admits he was angry with the accused.
18. In the light of the above discussion, accused stands acquitted of the charges framed against him.
19. File be consigned to Record Room after completion of necessary formalities.
Digitally signed by RUBY ALKA RUBY ALKA GUPTA
GUPTA Date: 2018.05.16
10:32:25 +0530
Announced in Open Court on (RUBY ALKA GUPTA)
9th May, 2018. Special Court POCSO/ASJ-01
New Delhi Distt./PHC/New Delhi.
FIR No. 485/15 State Vs. Sonu Sharma
PS Sagarpur Judgment dt. 09.05.2018
U/s 377/506 IPC & 4/6 POCSO Act page 8 of 8