Indian Kanoon - Search engine for Indian Law

2. The facts in brief are that on 11.01.2013 at 2.48 hours, an information was received by the police about a quarrel at house no.330-B Block, Pocket- 4, Navjeewan Camp, Govindpuri which was recorded vide DD No.46B (Mark-A). The said DD was marked to SI Ramakant (PW-13) for inquiry who reached at the spot and met the complainant. The complainant gave her statement that on that day at about 12 noon, her son „S‟ aged 6 years was playing with another boy „I‟ ( also mentioned as „M‟ in the impugned judgment) aged about 5 years on the roof, and after some time both of the boys were not found there. Searches were made to trace them and announcements were made through loudspeakers from Mosque, but they could not be found. At about 2 p.m., son of the complainant came weeping and told that they were playing on the roof when uncle Samay Chand- the accused, who was residing at the backside, came and allured them on the pretext of moving boxes and took them to his house where they were confined in a room. Then the accused removed the pants of the boys and also opened his pant to do wrong act with them. Accused tried to insert his penis into the anus of the son of the complainant, upon which they both started weeping. Accused tied a cloth (chunni) on the mouth of the complainant‟s son „S‟ to keep him mum and also gave beatings on his hands by a stick. After hearing the announcement on loudspeaker, the accused let them go. On coming to know about the incident, people went to the house of the accused, upon which he tried to flee, but was caught and was given beatings. The IO met both the children who were found frightened and did not say anything. On the basis of the statement of the complainant (Ex. PW- 1/A), FIR was registered.

10. PW3, the other victim „I‟, who was aged 6 years deposed that he and his friend „S‟ were playing on the terrace. Thereafter, they both went to the room of the accused to keep the box. Accused tied his hands with a cloth (chunni) and hit on the hands of „S‟ with a cane. „I‟ untied the cloth by applying force. The accused had inserted his penis into the mouth of „S‟. Thereafter, the accused applied oil around the anus of „S‟ by removing his trouser. He and „S‟ kicked on the face of the accused and ran away from the spot. They both went to their respective houses. PW3 told the entire incident to his parents. His father called up the police and the police inquired from him about the incident.

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: