Delhi District Court
Addl. Sessions Judge06 vs Raju S/O Sh. Bhamar Bar Malik on 31 March, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 56711/16
New SC No. 127/17
Old SC No. 253/14
FIR No. 599/14
PS Nangloi
U/S: 328/377/506/34 IPC &
6 of POCSO Act
State
Versus
Raju S/o Sh. Bhamar Bar Malik
R/o H. No. 724, Camp No. 2, Nangloi Delhi
Date of institution : 28.11.2014
Judgment reserved on : 28.03.2018
Judgment delivered on : 31.03.2018
ORDER/JUDGMENT: Accused is convicted for the offences punishable
under section 6 of POCSO Act.
J U D G M E N T
1. Sometimes the life becomes a curse for a deserted poor woman,
having two minor sons of tender age who leaves them alone in the house,
from the early morning until late hours for working as a labourer in a factory
on some petty amount, like a busy bee, to earn food for her minor children,
when she founds one of her sons with blood stained cloths and observes
the blood oozing out of the anus and told by him that someone has done
some wrong act with him by inserting some object in to his anus, in such
state of illiteracy calls a doctor who informs that some wrong act has been
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 1
done with her boy and she should report the matter to the police. She then
initiates the horns of criminal justice system seeking justice for her minor
son. Such incidents sometimes question the social fabric of a society.
2. In this case the criminal justice system was put into motion when on
26082014, one Ms. 'Ch', (presumed name of the complainant) the
mother of the victim boy Master 'R', (presumed name of the victim boy)one
of her two sons, aged about 10 years, had reported the matter with PS
Nangloi regarding the allegations of sodomy upon her son by 23 boys.
Her statement Ex. PW1/A was endorsed by one SI Mohit Prakash, who
was assigned the investigation into the matter, vide endorsement Ex.
PW8/A, who got registered a case on 26.08.2014, vide an FIR No. 599/14,
Ex. PW4/A, U/S 377 of Indian Penal Code (hereinafter referred as IPC)
and U/s 4 of The Protection of Children from Sexual Offences Act, 2012
(hereinafter referred as POCSO Act).
3. Brief resume of the allegations raised in the complaint of Ms. "Ch"
were that on 25.08.2014 at about 4:00 PM, her son namely Master 'R' had
gone out for playing and returned at about 8:30 PM in drunken condition
and on inquiry, he replied that he had gone to Rail Neer Plant for taking
bath and there 23 boys came and caught hold of him and forcibly
administered liquor to him and they did Galat Kaam with him due to which
he sustained injuries and the blood was oozing from his anus narrating
that they had inserted some wooden stick into his anus and had committed
carnal intercourse with him.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 2
4. The victim boy was taken to Sanjay Gandhi Hospital and was admitted
in the hospital on MLC No. 16207 dated 26082014, Ex. PW3/A with the
alleged history of administering some intoxicating substance and then
sodomized and he was medically examined.
The MLC Ex.PW3/A reflects the 'linear abrasions in the 6 O' Clock and
5 O' clock position in the anus and tenderness in the anus of the victim
boy.
5. The victim boy was taken to the spot of occurrence and at his instance
the site plan Ex. PW8/A was prepared by SI Mohit Prakash. But on the
spot no weapon i.e. any iron rod or wooden rod or clue of any sedative
substance could be recovered.
6. On completion of the investigation, the chargesheet was filed under
Section 377/506/34 of the Indian Penal Code, 1860 (IPC) and Sections 4
of the POCSO Act.
7. Vide order dated 18082015, the Charges were framed by the
Predecessor Court of Sh. Pawan Kumar Matto, for the offences punishable
under section 328/377/506/34 IPC & under Section 6 of the POCSO Act,
stating therein that on 26.08.2014 at about 2:30 PM, in the jungle near Rail
Neer Plant, within the jurisdiction of PS Nangloi, Delhi, the accused Raju
with other accused namely Ravi, Sunny & Vicky ( who are absconding) in
furtherance of common intention, administered liquor to the victim and also
inserted wooden piece in the anus of the victim boy and the accused Raju
and other coaccused Sunny had committed penetrative sexual assault
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 3
upon the victim or committed carnal intercourse upon the victim boy and
also threatened the victim boy to kill him, thereby the accused Raju had
committed the offences punishable u/s 328/377/506/34 IPC & 6 of
POCSO Act r/w 34 IPC, to which the accused pleaded not guilty and
claimed trial.
8. To prove the guilt of the accused, the prosecution has examined 8
witnesses:
a) The complainant/public witnesses:
• Ms. Ch, PW1, the mother of the victim,
• Master 'R', PW2, the Victim,
These are the material public witnesses produced by the prosecution to prove
the allegations levied against the accused.
During the examination of PW1 her complaint was exhibited as Ex. PW1/A,
seizure memo of one green colour Tshirt and one gray colour Nikkar of the
victim boy Ex. PW1/B and clothes of the victim boy Ex. P1.
b) Police Witnesses:
• HC Jagdish Prasad, PW4 to prove the FIR Ex. PW4/A, Endorsement on the
rukka Ex.PW4/B & & certificate u/s 65B of the Indian Evidence Act, Ex.
PW4/C.
This witness was the formal witness who came to prove the documents on
record.
Whereas
• Ct. Mahesh Dhaka, PW5,
• Ct. Daya Ram, PW7 &
• SI Mohit Prakash, PW8
These were the witnesses of investigation at different stages and they had
come to the witness box to prove their roles played by them during the course
of investigation and they had exhibited the documents viz., disclosure
statement, Arrest Memo, personal search & pointing out memo of the accused
Ex. PW7/A to Ex. PW7/D, seizure memo of blood with sample seal of the
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 4
accused Ex. PW7/E, seizure memo of cloths and blood with gauze sealed
parcel with sample seal of the victim Ex. PW1/B, Site plan Ex. PW8/B, Rukka
Ex. PW4/B, application for recording of the statement u/s 164 Cr.PC of the
victim Ex. PW6/B, Statement Ex. PW6/A.
c) Medical Witnesses:
• Dr. M. Dass, PW3, who exhibited the MLC No. 16207 Ex. PW3/A and he
further exhibited the MLC No. 16553 Ex. PW3/B of the accused.
d) Other witnesses:
• Ms. Swati Sharma, Ld. MM, as PW6, to prove the proceedings u/s 164
Cr.PC PW6/A to PW6/C.
9. The incriminating circumstances were put to the accused under
Section 313 Cr.PC., wherein he refuted all the allegations leveled against
him and had pleaded his innocence and he took the plea that he had been
falsely implicated in the case and stated that once the victim boy pulled the
sheet on which the accused was spreading fishes, due to which all fishes
got scattered and spoiled, thereupon the accused scolded him and just to
take revenge, he has falsely implicated him in the case.
10. Ld. Addl. PP for the State has submitted that the victim in this case is
a minor boy of the age of 10 years and the provisions of POCSO Act are
attracted, it is a settled proposition of law, in view of the provisions of
section 29 and 30 of POCSO Act that in case one person is prosecuted for
committing, abetting, attempting to commit any offence u/s 3,5, 7 & 9 of
this Act, the court shall presume that such person has done so, unless
contrary is proved and in this case the culpable mental state on the part of
the accused has been proved, not only through the testimony of the victim
boy, but also through the documentary evidence i.e. the statement of the
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 5
victim boy recorded u/s 161 Cr.PC, duly supported in his testimony and
also through his statement recorded u/s 164 Cr.PC Ex. PW6/A and
corroborated with the MLC of the victim Ex. PW3/A, thus, there exists
enough evidence against the accused to establish the commission of
offences u/s 328/377/506/34 IPC & 6 of POCSO Act r/w 34 IPC, by the
accused.
Also that the discrepancies in the testimony of the victim as PW2
should be overlooked as minor and immaterial contradictions, as the victim
was of tender age of about 10 years at the time of the occurrence, and
about 11 years at the time of his examination, and that the victim has fully
supported the case of the prosecution and was consistent in his
depositions with the version given to the police and before the Magistrate
u/s 164 Cr.PC, and his testimony further stand corroborated with the
medical record duly exhibited in the court, and that the discrepancies in the
testimony of complainant does not affect the trial, as she was not the eye
witness of the occurrence and she has stated in the complaint as told by
the victim boy to her.
11. Sh. Rajiv Mittal, Ld. Counsel for the accused has submitted that the
accused Raju has been falsely implicated in the case by the victim boy and
the victim boy had pulled the sheet on which the accused was having
fishes, due to which all fishes got scattered and spoiled, thereupon the
accused scolded him and just to take revenge, he has falsely implicated
him in the case.
Further that the identity of the accused is in dispute as neither the
complainant in her complaint, nor the victim in his statement recorded u/s
164 Cr.PC has mentioned the name of the accused despite the fact that
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 6
the victim told the identity of the accused to the complainant on the next
morning of the incident.
Further, the victim boy has deposed that the accused gave a blow on
his legs by a hot iron rod but the MLC of the accused does not support
such deposition of the victim.
Also that the falsity of the allegations are clear from the versions
/testimony of the PW1, the mother of the victim boy and PW2, the victim
boy as their testimonies are full of major contradictions, improvements,
exaggerations and omissions.
Further, that the victim boy has not disclosed as to accused did any
penetrative sexual assault upon him as he has deposed that he became
unconscious and did not know as to what had happened.
Also that the prosecution has failed to prove the age of the victim
boy as neither any birth certificate nor any other proof has been
produced by the prosecution to prove the age of the victim boy.
Thus, it is prayed that the accused is entitled for the benefit of doubt.
12. I have given my thoughtful considerations to the rival submissions of
Sh. Sanjay Jindal, Ld. Addl. PP for the State and Sh. Rajiv Mittal, Ld.
Counsel for the accused and have perused the evidence available on
record, meticulously in the light of such contentions.
13. The prosecution, in order to establish its case for the offences under
section 328/377/506/34 IPC & 6 of POCSO Act r/w 34 IPC, alleged against
the accused namely Raju, facing trial before this court, must establish the
following ingredients:
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 7
For offences punishable under section 328 IPC
i) that the substance in question is a poison, or any stupefying,
intoxicating, or unwholesome drug etc.;
ii) That the accused administered the substance to the complainant or
caused the complainant to take such substance;
iii) that he did as above with intent to cause hurt or knowing it to be
likely that he would thereby cause hurt or that the accused intended to
commit or facilitate the commission of any offence.
For offences punishable under section 377 IPC
i) that the accused had carnal intercourse with the victim boy;
ii) that such intercourse was against the order of nature;
iii) that the accused did the act voluntarily;
iv) that there was penetration.
For offences punishable under section 506 IPC
i) that the accused threatened some person.
ii) that such threat consisted of some injury to his person, reputation
or property; or to the person, reputation or property of some one in
whom he was interested;
iii) that he did so with intent to cause alarm to that person; or to cause
that person to do any act which he was not legally bound to do, or
omit to do any act which he was legally entitled to do as a means of
avoiding the execution of such threat.
Further for offences punishable under section 6 of POCSO Act
i) that the accused had committed aggravated penetrative sexual
assault upon the victim
14. What act of the accused constitutes Penetrative sexual assault is
prescribed U/s 3 of the POCSO Act that reads as under :
3. 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
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 8
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.
15. Also that the penetrative sexual assault would be said as 'aggravated'
penetrative sexual assault if it falls within the categories described u/s 5 of
the Act the relevant extracts of the provision of Section 5 of the Act is
extracted below :
5. Aggravated penetrative sexual assault :
(a) ...........
......
(m) whoever commits penetrative sexual assault on a child below twelve years; or
......
......
said to commit aggravated penetrative sexual assault.
16. On careful perusal of the evidence on record, it is observed that the entire prosecution case was based on the testimonies of the Victim 'R', examined as PW2, and Ms. 'Ch', the complainant, the mother of the victim as they were the star material witnesses of the prosecution, being the victim and mother of the victim, who could disclose as to what had happened with the victim and to whom firstly the victim had told about the incident.
17. The prosecution has examined the Victim 'R' as PW2. The relevant extract of his testimony is extracted below :
On the date of occurrence, I was playing in the stadium. Four boys came there and they asked me to go in the jungle with them. I refused for the same. The accused present in the court gave me danda blows on my person and caught me from collar. I was taken in jungle by all the accused.
In the jungle, the accused persons forced me to drink liquor and when I refused for the same, they touched hot iron rod on my legs. The accused UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 9 persons took out a yellow colour like pill, put it into the liquor in a glass and then forced me to drink the same. I consumed the same and thereafter, I became unconscious. I gained consciousness at about 9:00PM. I saw that the blood on the ground and I was feeling pain in my anus area. My nicker was blood stained from back side and the blood was also present on my anus.
I started leaving the spot. I reached near the road. My step maternal uncle (Sautele Mama) met me there on the road. Seeing my condition, he asked me as to how was I walking and whether I had consumed Daru. I did not say anything to him. Thereafter, he took me to my house. First, I went to my house but the same was found locked therefore, I went towards the house of my Nani. I reached the house of my Nani and there I met with my mother there. My mother asked me as to why did I consumed liquor and when I did not reply, she slapped me. I told to my mother that I was not able to speak and requested her not to give me beatings. My mother asked me 'Kya Hua Tujhe'. I took my mother aside/outside and said to her that do not tell it to Nani. I showed my anus area to my mother, from where blood was oozing out intermittently. I narrated about the incident to my mother as aforesaid and while so narrating, I became unconscious. My mother wiped the blood from my anus region from the cloth. I gained consciousness in the morning. My mother told me that she had called doctor in the night. In the morning, my mother took me to Sanjay Gandhi Hospital. Doctors treated me there.
... ... ...
At the time, I met my mother after the incident, I had told to her that I have suffered injury in my anus with insertion of wooden stick. However, at that time I was not sure as to what had happened with me. It was only my medical check up in the hospital when it was revealed that I had been subjected to sodomy.
18. Further, it is observed that even in his statement Ex.PW6/A recorded u/s 164 Cr.PC before Ld. M.M., duly proved through the testimony of PW6, he has categorically narrated the incident in a simple manner describing the incident supporting the prosecution case and detailing the activities of the accused committed during occurrence.
The relevant extracts of translated version of his statement recorded in vernacular language in Hindi, u/s 164 Cr.PC are extracted below:
'One day I was going to the house of my uncle. On the way, four boys met me and they forcible taken me to a jungle and forcible administered me UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 10 liquor and on my refusal they gave blow by a rod on my leg. Further they threatened me to insert road in my stomach, in case of my nontaking of liquor and they forcibly administered me liquor, due to which I became unconscious. Thereafter, the said boys did Galat Kaam with me and they did something on my anus. When I gained conscious, I saw that all of them had run away and the blood was oozing from my anus.'
19. The present case was registered on the statement of complainant Ms. 'Ch', the mother of the victim boy and in her complaint given to the police she had stated that, 'On 25.08.2014 at about 4:00 PM, her son namely Master 'R' had gone out for playing and returned at about 8:30 PM in drunken condition and when she asked to him he replied that he had gone to Rail Neer Plant for taking bath and there 23 boys came and caught hold of him and forcibly administered liquor to him and they did Kalat Kaam with him due to which he sustained injuries and blood was oozing from his anus'.
20. Further, the prosecution has also examined Smt. 'Ch', the mother of the victim as PW1.
The relevant extract of her testimony is extracted below :
'It was on 25.08.2014. I came back to my house from the duty at about 8:30 PM. My mother told me that victim has not come back after playing. My mother told me that he had gone playing at about 4:00 PM. My mother lived in my neighbourhood and I had gone to take the key of my house and at that time she told me as above.
After hearing the same, when I was coming back from the house of my mother, I saw that my son i.e. the victim was being brought by two of our neighbours, one of them was from the family of my landlord and other was a neighbour. My son was at that time in drunken condition. Smell of alcohol was coming from his mouth.
Seeing him in that condition, I got annoyed and slapped him. My son i.e. victim hugged me and told me to take him to the house of his Nani i.e. my mother. I took him to the house of my mother. After going inside the house of my mother, my son i.e. victim told me that " Mere Pichhe Kisi Ney Lakdi Kar Di".
I saw his back side. His clothes including Nikkar were stained with blood. I took my son to the house and cleaned his anus area with cotton. My UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 11 other family members also gathered there. My son i.e. victim was not in condition to speak at that time.
We called a doctor from neighboiurhood who examined the victim, gave him medicines and he told us that in his opinion some Galat Kaam had been committed with the victim and we should report the matter to the police. After taking medicines, my son i.e. victim slept.
Next day morning, victim told me that four boys had committed Galat Kaam i.e. Sodomy with him. Accused persons had given beatings to him and forced him to drink alcohol. I took victim to the PS and reported the matter to the police as per the facts told to me by the victim. Police personnel took my son/victim to the Sanjay Gandhi Hospital. After examination my son was admitted in that hospital.
During investigation, I handed over the clothes i.e. one green colour Tshirt and one gray colour Nikkar which the victim was wearing at the time of commission of the offence by him. IO seized the clothes vide seizure memo Ex. PW1/B bears my signature at point A. Victim has studied upto class 4 th in village Pindara situated in District Jind, Haryana. I have told about the same to the IO. At present, I do not have the record pertaining to the date of birth of the victim. However, I have a certificate of classIInd but I do not know whether date of birth of victim is mentioned in that certificate'.
21. On appreciation of the entire material / evidence comprises of ocular as well as documentary evidence, it is observed that the victim boy who was a child witness of tender age of about 10 years, in his brief account of his testimony, had categorically narrated the incident of forcibly administering of liquor to him by the accused along with his other co accused persons and inserting of wooden piece in his anus and committing of carnal intercourse and extending of threats by them to him.
22. The unflinching testimony of the victim boy as PW2 is in absolute corroboration of his version given in his statement Ex.PW6/A recorded u/s 164 Cr.PC, by the Ld. Magistrate, during investigation and on these aspects the witness stood firm even on the test of crossexamination.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 1223. Ld. Counsel for the accused has raised the contentions regarding the identity of the accused and has submitted that neither the complainant in her complaint dated 26082014 mentioned the name of the accused nor the victim boy in his statement recorded on 30.08.2014 u/s 164 Cr.PC has disclosed the name of the accused.
Whereas in her testimony, PW1, the complainant had deposed that on the next morning of incident, the victim boy told her that, Mein Ek Ko Pahchanta Huin, Teen Ko Nahin Janta Or Woh Ek Ladka Nale Par Machchi Bechta Hai, Usne Uske Sath Galat Kaam Kiya Tha, Mere Ladke Ne Yeh Bhi Kaha Ki Woh Teeno Ko Bhi Pehchan Sakta Hai'.
24. Also Ld. Counsel for the accused has raised the contentions that the falsity of the allegations are clear from the versions /testimony of the PW1, the mother of the victim boy and PW2, the victim boy as their testimonies are full of major contradictions, improvements, exaggerations and omissions.
25. To meet the contentions of Ld. Counsel for the accused, the entire material placed on record has been meticulously perused. It is observed that basically on the aspect of the penetrative sexual assault upon the victim boy by the accused on the eventful day at the relevant date, time and place, there appears no discrepancy regarding the facts that the accused along with his coassociates/accused took the victim to a Jungle and inserted a wooden piece in his anus and also committed carnal intercourse with him.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 1326. On the aspects of committing penetrative sexual assault or inserting of wooden piece, the versions of the victim boy has been corroborated with the testimony of her mother examined as PW1 as she has deposed that the blood was oozing from his anus and this fact has been further corroborated with the medical record of the victim i.e. the MLC Ex.PW3/A that clearly reflects the 'linear abrasions in the 6 O' Clock and 5 O' clock position in the anus and tenderness in the anus of the victim boy that could be possible, by inserting of some object like a wooden piece or by committing some anal penetration with the victim by someone.
27. On the nature of injuries on MLC, Ld. Counsel for the accused has raised the contentions the Doctor M. Das, who examined the victim, as PW3 has deposed in the Court that the possibilities of sustaining in such injuries cannot be ruled out by a child sustaining such injuries by falling on some blunt long object. To these contentions when the entire evidence on record is read in its entirety there appeared not even an iota of evidence on record to show that the victim had fallen on some blunt long object at the relevant date, time and place of the occurrence. On the test of reasonable prudence, there appears no reasons of falling of the child against the blunt object on the back, in such a manner that he will receive injuries 'into' and 'on' his anus to get 'linear abrasions in the 6 O' Clock and 5 O' clock position in the anus and tenderness in the anus of the victim boy that could only be possible, by inserting of some object like a wooden piece or by committing some anal penetration with the victim by someone.
28. Further, as per the scheme of the POCSO Act, U/s 30 of the Act it is UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 14 specifically mentioned as presumption of culpable mental state of an accused, unless contrary is proved by the accused himself on record with the evidence on the same or more weight to that of the prosecution that the possibility of getting such injuries by falling as raised in the contentions of Ld. Counsel for the accused was proved through some cogent evidence either ocular or documentary that the injuries shown on the MLC of the victim boy were received by falling against the blunt object and that is also when the injuries were on the anus and there was no injury or any marks of abrasions on any other part of the body at the back portion of the victim boy. In the absence of any contrary defence to prove the possibility of injury by falling against the blunt object, the injuries into and on anus were to be read in corroboration of the testimony of PW1 & 2. Here it is worth to mention that nothing could be proved on record by the defence that there was any reason for PW1 & 2 to falsely implicate the accused for the allegations raised by the prosecution.
29. Further, PW1, the mother of the victim boy, in her testimony had categorically deposed that, I took him to the house of my mother. After going inside the house of my mother, my son i.e. victim told me that " Mere Pichhe Kisi Ney Lakdi Kar Di".
I saw his back side. His clothes including Nikkar were stained with blood. I took my son to the house and cleaned his anus area with cotton. My other family members also gathered there. My son i.e. victim was not in condition to speak at that time.
We called a doctor from neighboiurhood who examined the victim, gave him medicines and he told us that in his opinion some Galat Kaam had been committed with the victim and we should report the matter to the police. After taking medicines, my son i.e. victim slept.
30. It is observed that the reference of the injuries on the MLC, when read UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 15 in the light of the testimony of PW1, with the version given by PW2 the victim rules out the possibility of injuries received by the victim boy by falling against the blunt object as the testimony of PW1 on this aspect remained unimpeached that on seeing the condition of his boy, the poor lady, the mother of the victim, as a reasonable person of that literate, called the doctor from a neighbourhood area for giving relief and dressing to her son and only when such doctor examined the victim boy and opined that some 'wrong act' has been committed with her son and the matter should be reported to the police had rushed to the police station to report the matter and from there the police persons have taken the victim boy to SGM Hospital where Doctor M. Das has examined and opined on the MLC about the nature of Injuries. The entirety of the evidence of PW1 and 2 with the medical record leaves no room of doubt that some object was inserted into his anus and the testimony of PW2 stating that 'Four boys came there and they asked me to go in the jungle with them. I refused for the same. The accused present in the court gave me danda blows on my person and caught me from collar.' coupled with his version given in his statement Ex.PW6/A u/s 164 Cr.P.C. that four boys met me and they forcible taken me to a jungle and forcible administered me liquor and on my refusal they gave blow by a rod on my leg. Further they threatened me to insert road in my stomach, in case of my nontaking of liquor and they forcibly administered me liquor, due to which I became unconscious. Thereafter, the said boys did Galat Kaam with me and they did something on my anus. When I gained conscious, I saw that all of them had run away and the blood was oozing from my anus.' Make it clear that he was taken by four boys (including the accused) forcibly administered him liquor and did wrong act and such wrong act UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 16 was relating to inserting of some object into his anus by them when he was in the state of unconsciousness.
31. Non examination of the first doctor who was called by the mother of the victim or the persons who brought the victim boy to his house is non consequential as there non examination does not affect the case of the prosecution nor it is expected that any of such person will come to help to be witnessed in the case of the son of such poor lady.
32. Also for the minor discrepancies regarding the facts relating to fact that the victim was either going to stadium or to the house of his uncle, in the narration to his mother or regarding the facts that as to who brought the victim to his house, it is observed that such minor discrepancies are bound to occur in a truthful witness i.e. the victim, who in such tender age, is not expected to narrate the things to different people i.e. his mother, police, Ld. M.M. or in the Court in a 'parroted' manner.
33. It is a settled proposition of law that the court should not sit in an ivory tower, and has to consider the hard realities of life that the child was of a very tender age of 10 years, at the time of the incident and was examined in the Court after a considerable period of two years. But these facts deposed by the victim boy regarding inserting of some object into his anus which was clear from the circumstances he had testified that after forcibly administering liquor into him, he became unconscious and when he gain consciousness, he saw that the blood on the ground and he was feeling pain in his anus area and his nicker was blood stained from the back side and the blood was also present on his UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 17 anus. The conjoint reading of his testimony with his mother examined as PW1 who deposed that she wiped the blood from his anus region from the cloth and called the doctor from neighbourhood who examined the victim, gave him medicines and told her that in opinion some galatkam had been committed with the victim, clearly show the sexual intent of the accused and culpable mental state on the part of the accused.
34. Thus, as per the provisions of Section 30 of the Act, the Court has to presume the existence of such mental state and it was on the accused to prove the contrary as a defence, if any, against such culpable mental state. In this case, according to such presumption, as laid in Section 30 of the Act, such facts are said to be proved as it is believed to exist.
35. Thus, the victim boy in his brief account in his statements given at different places to different persons and in the court had categorically established that accused along with his 23 associates had inserted some object and also did anal penetration and thereby the accused committed a penetrative sexual assault upon the victim boy with culpable mental state.
36. Further, the prosecution has examined Ms. Ch, the mother of the victim boy as PW1 to whom the victim boy has narrated the incident first just after the incident.
37. She has supported the prosecution case and the version given by her son. Also the mother of the victim boy examined as PW1 who has also corroborated the versions narrated by his son regarding the incident.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 1838. The discrepancies of PW1 & PW2 are minor in nature and are not going into root of the prosecution case, regarding the allegations raised against the accused.
39. Also, in a catena of judgments Hon'ble Apex Court has observed that the discrepancies are bound to occur in the testimony of public witnesses, howsoever truthful they may be.
In one of such cases titled as State of Rajasthan Vs. Smt. Kalki & Anr., AIR 1981 SC 1390, it is observed that, "In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
Thus, the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witnesses, if it is corroborated and supported with the other evidence connected with the offence.
40. On observing the above noted observations, in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, the Hon'ble Apex Court has observed that the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witness, if it is corroborated and supported with the other evidence connected with the offence, but the Court has to consider whether such discrepancies are material or minor in nature before placing its reliance on such testimonies.
41. Here, it is also worth to mention the observations of Hon'ble Apex Court in case titled as Krishna Mochi and Ors. v. State of Bihar etc. cited as 2002 (6) SCC 81, that , UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 19 'A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored.
It was further observed that, 'The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower.
Some discrepancy is bound to be there in each and every case which should not we weighed by the Court so long as it does not materially affect the prosecution case.
In case discrepancies pointed out are in the realm of pebbles, court should tread upon it.
42. As per the above stated principles, the Court while appreciating the evidence should not loose sight of these realities of life, and cannot afford to take an unrealistic approach by sitting in an ivory tower, as the discrepancies in the depositions of the witnesses may be due to normal errors of observation, errors of memory due of lapse of time, due to mental disposition such as shock and horror of reminding the occurrence and otherwise.
43. In the background of the abovenoted principles, it is observed that on the test of realities of life observing that the witnesses i.e. the victim boy examined as PW2 & his mother examined as PW1 who were of very little literacy and of average Intelligence Quantity (IQ) and was residing in a very poor background as is clear from the records, the discrepancies were minor in nature and not relating to the allegations which were duly proved by the victim and his mother who were the sterling witnesses of the prosecution and were able to prove the circumstances in a well knit manner to prove that the accused in association with his associates UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 20 committed wrong act i.e. anal penetrative sexual assault as described U/s 3 (b) of the POCSO Act.
44. The victim boy, PW2 has reproduced the occurrence in a very simple language stating the occurrence and the activities of the accused committed at the relevant date, time and place during the occurrence, thereby proving the allegations of penetrative sexual assault against the accused.
45. Further, on the quality of the evidence of the witnesses, i t was observed by the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21' that, "... the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable.
The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 21...........
Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished.
To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
46. Thus, the prosecution has successfully established the facts regarding anal penetrative sexual assault upon victim boy by the accused and his associates.
47. So far as the question of establishing of the identity of the accused is concerned, Ld. Counsel for the accused has raised the contentions that the name of the accused was not mentioned either in the complaint by the mother of the victim boy or by the victim in his statement U/s 164 Cr.P.C. though as per the testimony of PW2, the victim boy had informed her mother that he identifies one out of four boys as he was the one who sells fishes at drain (Nala) and that he had done galatkam with him. The relevant extracts reproduced below :
'My son had told me that MEIN EK KO PAHCHANTA HUAN TEEN KO NAHIN JANTA OR who EK LADKA NALE PAR MACHCHHI BECHTA HAI USNE USKE SATH GALATKAAM KIYA THA MERE LADKE NE YEH BHI KAHA KI who TEENO KO BHI PEHCHAN SAKTA HAI' UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 22
48. From the abovenoted depositions of the mother of the victim boy, it is clear that the victim boy informed her mother about the description of one of four boys but did not name anyone and informed that he can identify that boy and also other three boys, if produced before him.
49. During investigation, out of the four boys, only one could be apprehended on 30.08.2014 and was arrested vide Arrest Memo Ex.PW7/A who vide his disclosure statement Ex.PW7/C had disclosed the names of other three persons who were his associates as Ravi, Vicky and Sunny but they could not be traced during investigation.
50. The boy i.e. the accused who was arrested was put on Test Identification Parade (TIP) for the purpose of identification of the accused by the victim boy who told her mother that he identified that person and could have identified in Test Identification Parade (TIP) but the accused had refused to participate the Test Identification Parade (TIP) vide his statement dated 07.10.2014 made before Ld. M.M. Ms. Swati Singh who had recorded TIP proceedings for the accused. The refusal was after the caution given to him by the Ld. M.M. that in case he does not join the TIP proceedings and if he refuses, then adverse inference may be drawn against him during the trial but the accused persisted in not joining the TIP and his statement in that regard was recorded by the Ld. M.M. The judicial note of such proceedings are taken as was recorded by Ld. M.M. during the course of investigation.
51. Further, when the victim was examined as PW2 in the Court, he had categorically and correctly identified the accused in the Court itself and had UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 23 deposed that the accused present in the court gave him danda blows and caught him from collar and that he was taken in jungle by all the accused persons. He also reproduced the activities of all the four persons including the accused who was present in the Court on that day.
The relevant portion of his testimony is extracted below :
The accused present in the court gave me danda blows on my person and caught me from collar. I was taken in jungle by all the accused.
In the jungle, the accused persons forced me to drink liquor and when I refused for the same, they touched hot iron rod on my legs. The accused persons took out a yellow colour like pill, put it into the liquor in a glass and then forced me to drink the same. I consumed the same and thereafter, I became unconscious. I gained consciousness at about 9:00PM. I saw that the blood on the ground and I was feeling pain in my anus area. My nicker was blood stained from back side and the blood was also present on my anus.
52. Thus, not only the identify of the accused was established on record but the activities of the accused were also reproduced by the witness i.e. Master boy who was the victim of the circumstances. The TIP refusal itself leads to an adverse inference that in case of his participation in the TIP, he might have been identified by the victim boy there and then. The identify of the accused by the victim boy in the Court also establishes his identity as the person who committed the activities reported by the witness in the Court. Thus, the contentions relating to identity of the accused, made on behalf of the accused are declined and the prosecution has successfully proved the identity of the accused. It does not matter as to who did what during the occurrence out of the four persons named by the victim boy as the activities were done in furtherance of their common intentions and each of them was jointly as well as severely liable for the activities of them.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 2453. Ld. Counsel has also raised a contention that as per the testimony of Master boy, after consuming liquor he became unconscious and thus, it could not be proved that the penetrative sexual assault has been committed upon him by one or four persons described by the victim boy.
54. The entirety of the evidence and the conjoint reading of PW1 & 2 as discussed above, had clarified and established the act of anal penetrative sexual assault as described under Section 3 (b) of the Act, as discussed above in the foregoing paragraphs of the body of the judgment. For the sake of clarity and brevity, it is observed that as per the testimony of PW2, when regained consciousness, he found blood on the ground and he was feeling pain in his anus area and his nicker was blood stained from back side and the blood was also present on his anus. PW2, his mother deposed that he had called the neighbourhood doctor who examined the victim and gave medicines had told her that in his opinion some galatkaam had been committed with the victim and she should report the matter to the police and when the matter was reported to the police and the victim was taken to the hospital as per the MLC, the injuries were suggestive of anal penetrative sexual assault and nothing contrary could come on record as defence that the accused had not committed so to revert the assumption against the accused, in terms of Section 29 and 30 of the Act.
55. It is observed that during the examination of the accused U/s 313 Cr.P.C., the accused himself had taken a defence that there was some anguish / enmity on the aspects of spreading of the fishes of the accused by the victim boy prior to the date of incident and that due to such enmity to take revenge the victim had falsely implicated the accused. This defence UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 25 itself is suggestive of an enmity of the accused with the victim boy and this was rather acted as a motive of taking revenge by the accused against the victim boy for commission of the offence and these facts are corroborated in the testimony of PW2 when her son the victim boy informed his mother that one out of four persons who committed the act of anal penetrative sexual assault upon him was the person who used to sell fishes at drain (Nala).
56. Thus, there leaves no room of doubt that not only the identity of the accused was established on the record by the prosecution but also it has successfully proved the commission of anal penetrative sexual assault by the accused upon the victim boy at the relevant date, time and place.
57. From the record/evidence as nothing could be recovered from the spot to give any clue regarding any sedative substance so administered in the liquor to the victim as informed by the victim boy in his testimony that some yellow pills were poured in the drink which he was compelled to consume, the prosecution could not prove through cogent evidence on record that the victim boy was administered a sedative substance by the accused and the MLC also does not mention anything in this regard though the victim boy was medically examined just on the next day and nothing could come on record that the first doctor who examined the victim boy had observed any such sedative substance in the body of the boy. Had it been the case that the first doctor could have been produced by the prosecution then there could be a possibility of any opinion of consumption of any sedative substance by the victim boy. Thus, the offence U/s 328 IPC could not be proved against the accused beyond reasonable doubt.
UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 2658. Further regarding the offences u/s 506 IPC, the prosecution also could not prove the fact that the accused was extended threats to the victim boy, except that he was put into fear during commission of offence of administering liquor or for taking him to jungle and thus the basic ingredients of criminal intimidation necessary to prove the offences u/s 506 IPC could not be proved by the prosecution.
59. Thus, from the evidence produced by the prosecution it was established on record the prosecution could only established the commission of the offence of anal penetrative sexual assault as prescribed u/s 3 (b) of the Act stands proved against the accused Raju.
60. Further, as the victim boy was of the age of 10 years as is recorded on complaint Ex.PW1/A, the statement Ex.PW6/A and the MLC Ex.PW3/A, who was under the age of 12 years, the prosecution could also establish the commission of the offence of aggravated anal penetrative sexual assault as prescribed u/s 3 (b) r/w section 5 punishable u/s 6 of the Act, against the accused.
61. Further, the procedural discrepancies raised by Ld. Counsel of the accused, in the testimonies of police witnesses regarding the investigation of the matter could not affect the prosecution case as these were minor discrepancies in nature as these were related to procedural aspect of investigation regarding recording of the proceedings and of the timings & the place of conducting the proceedings by the investigating officer or relating to non conducting of the age ossification of the victim, but these discrepancies do not go to the root of the prosecution case, in any manner, UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 27 as the offence of aggravated penetrative sexual assault was otherwise established on record through the testimony of victim boy with corroborative testimony of her mother examined as PW1, who was the witness to whom the victim boy firstly told about the incident.
62. It is a settled principles of law, that the justice cannot be a casualty of irregularity of investigation by the Investigating Officer, thus the procedural irregularities of the investigation does not affect the case of the prosecution that otherwise established against the accused for the offence punishable U/s 6 of the POCSO Act.
63. Further, there is a scheme provided in the POCSO Act that the court shall presume the commission of offence, in case, through unflinching evidence on record, the prosecution is able to establish the case and if the same is proved then the presumption shall be drawn in favour of the Complainant / victim and against the accused until the contrary is proved by the accused by way of defence.
64. Section 29 of POCSO Act reads as below :
Presumption as to certain offence :
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
And Section 30 of POCSO Act, prescribes :
Presumption of culpable mental state :UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 28
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
65. In the present case, nothing contrary has been proved by the accused in his defence except mere assertions of the facts that the victim boy had pulled the sheet on which the accused was having fishes, due to which all fishes got scattered and spoiled, thereupon the accused scolded him and just to take revenge, he has falsely implicated him in the case. But no evidence has been produced on record to prove the contrary i.e. also of the equal or more weight to that of the evidence produced by the prosecution to prove the offence of 'aggravated penetrative sexual assault' upon the victim boy by the accused.
66. Further, as per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 29
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
67. The above settled principles of law when applied to the facts of instant case, it is observed that the prosecution is successful to establish the facts beyond reasonable doubts through the testimony of PW2, the victim boy with the corroborative depositions of his mother examined as PW1, to prove the circumstances in well knit manner about the activities of the accused well covered within the definition of anal penetrative sexual assault as prescribed u/s 3 of the Act r/w section 5 of the Act, that leads to one and only one hypothesis that the accused has committed the offence of aggravated penetrative sexual assault, as described u/s 3 r/w 5 punishable u/s 6 of POCSO Act.
Thus, from the abovenoted facts and circumstances and on the settled proposition of law, the court is of the considered view that the prosecution has successfully proved for the offence u/s 3 r/w 5 punishable under section 6 of POCSO Act against accused Raju.
68. In view of the foregoing discussions & conclusions, the accused Raju is held guilty for the offences U/s 6 of POCSO Act.
69. Accordingly, the accused Raju is convicted for the offence U/s 6 of POCSO Act. Digitally signed by ARCHANA ARCHANA SINHA SINHA Date:
2018.04.03 12:26:29 +0530 Announced in the open Court (Dr. Archana Sinha) th on this 31 day of March 2018 Addl. Sessions Judge06,West Tis Hazari Courts, Delhi 31.03.2018 UID No. 56711/16 FIR No. 599/14 PS. Nangloi State Vs. Raju Page No. 30