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5. Victim „I‟, in his statement under section 164 CrPC (Ex. PW-4/B) stated that on that day, he was playing with „S‟ and Lucky. The accused came and told them that if they remove boxes from his room, he will give them 10 rupees each. He and „S‟ moved the boxes and went to his room.

They were playing at his house. Accused locked the door and tied the hands and legs of „S‟, and tied a cloth on the eyes and hands of „I‟. „I‟ took a knife and cut the cloth wrapped over his eyes. The accused had tied the eyes of victim „S‟. He saw that the accused put oil on the anus of victim „S‟ and he put his penis in the anus of „S‟. The accused tried to remove his pant too, but was unsuccessful. „S‟ was wearing a pyjama.

11. PW1- mother of PW2-„S‟ deposed that „S‟ aged about 6 years and „I‟, son of her neighbor were playing together at the terrace. After sometime, grandmother of „I‟ told her that „I‟ was not around and asked about „S‟, and she saw that „S‟ was not there at the place where he was playing. They made efforts to locate them but they could not be traced. They got announcements made from the loudspeaker of the Mosque, after which her son „S‟ came home weeping. Her son told that the accused Samay Chand took him and „I‟ to his place on the pretext of removing some box and allured them saying that he would pay them Rs.10. The accused locked them in the room. Her son further told that the accused removed his pyjama and applied oil on his anus and tried to insert his penis in the anus of her son. When her son wept and objected, the accused had beaten him with a danda. When he was crying, the accused tied his mouth with a piece of cloth and after the announcement made from the mosque, accused let them free. Public persons gathered there and had beaten the accused. A call was made to the police and police recorded her statement Ex.PW1/A.

42. The evidence brought on record does not, however, establish beyond all reasonable doubt the commission of the offence of penetrative sexual assault. Though, PW-3 - the victim „I‟ did state in his statement recorded under Section 164 Cr.P.C. that the accused committed the offence of penetrative sexual assailt by inserting his penis into the anus of the victim S, the victim „S‟ (PW-2) did not say so either in his statement recorded under Section 164 Cr.P.C., or in his statement before the Court. PW-1 the mother of the victim „S‟ was the first in whom the victim „S‟ confided. PW-1 recorded her statement under Section 161 Cr.P.C. contemporaneously. In the said statement, she stated that the accused attempted to insert his penis into the anus of the victim „S‟. Even before the Court, while deposing as PW-1, she repeated the same statement. Moreover, the MLC of the victim „S‟ also does not corroborate the charge of penetrative sexual assault, since there was no injury found on the anus of the victim „S‟. It is also not supported by the MLC of the accused, since he was not found to have suffered injuries on his private part, which could have been caused during anal intercourse with the child aged 6 years. However, the act of applying oil on the anus of the victim „S‟ brings the offence under Section 7 of the POCSO Act. Section 7 of the POCSO Act reads as follows:

―7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.‖

43. Considering the fact that both the victims „S‟ and „I‟ were only 6 and 5 years of age respectively, the offence qualifies as a case of aggravated sexual assault as defined in Section 9(m) of the POCSO Act. From the evidence brought on record, the offence of aggravated sexual assault defined in Section 9 read with Section 7 of the POCSO Act clearly appears to be made out beyond all reasonable doubt.