Sunil alias Machhar v. State

1. By the present appeal, the appellant challenges the impugned judgment dated 22nd April, 2015 convicting him for the offence punishable under Section 4 of Protection of Children against Sexual Offences Act, 2012 (in short 'POCSO Act') in FIR No. 148/2013 registered at PS Ashok Vihar and the order on sentence dated 8th May, 2015 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of ₹5,000/- and in default to undergo simple imprisonment for a period of six months.

2. Learned counsel for the appellant contends that brother of the victim who stayed with him has not been examined as a witness. As per the FIR only one incident has been alleged, however, the victim child (PW-5) in his statement under Section 164 Cr.P.C. mentions about a number of incidents. Thus, there is glaring contradiction in the prosecution version. Child victim 2018:DHC:5269 admits about his addiction in his cross examination which is in fact the defence of the appellant and has not been considered by learned Trial Court.

3. Learned APP for the State on the other hand contends that the MLC of the child victim corroborates the prosecution case. The injuries were 2 to 7 days old and were partially healed. Child victim deposed about one incident only in the Court and the said version is thus required to be accepted.

4. Briefly stated, prosecution case is that on the intervening night of 17th and 18th May, 2013 around 12:00 midnight, one person (elder brother of victim child) came to the police station along with the victim child (PW-5). The victim child got his statement [Ex. PW-5/A] recorded wherein he stated that he resides at the Jhuggi situated in Ashok Vihar, Delhi on rent with his father and elder brother. On 16th May, 2013 around 11:00 P.M., when he was alone at home, the appellant whom he calls Sunil Chacha came to his house. Appellant asked him to come to the terrace to clean his room and throw away the garbage. When he entered the room, appellant held him from his back, gagged his mouth and took him towards the staircase in the dark. The appellant forcibly removed his clothes and forcibly inserted his penis into the victim’s anus. When he shouted out of pain, the appellant gagged his mouth. Thereafter, the appellant forcibly inserted his penis into his mouth and asked him to lick the same. When he refused to do so, the appellant gave him beatings and continued the act (‘gandi harkat’) for almost 1½ hours. When the appellant released him, he came to his room and slept. When his elder brother (PW-7) came, he narrated the incident to him who then brought him to the police station. On the basis of the aforesaid statement, FIR No. 148/2013 [Ex. PW-5/B] was registered under Sections 377 IPC and Section 4 of POCSO Act at PS Ashok Vihar. Thereafter, SI Surender Singh (PW-10) took the victim child to BJRM Hospital for medical examination. SI Surender Singh prepared the site plan [Ex. PW- 5/C] at the instance of victim child. The appellant, who was present in house, was arrested by SI Surender Singh vide arrest memo Ex. PW-5/D and his personal search was conducted vide memo Ex. PW-9/A. Thereafter, the appellant along with Ct. Amit was sent to BJRM Hospital for his medical examination. On 20th May, 2013, the statement of the victim child was recorded under Section 164 Cr.P.C. vide Ex. PW-5/B. On 11th June, 2013, the exhibits were sent to FSL, Rohini. After completion of investigation, charge sheet was filed.

5. After ascertaining that the victim was capable of understanding the questions put to him and giving rational answers thereof the victim child was examined who deposed as under:

Ans. Main machar (accused), usko Sunil bhi bulate hai, ke kamre ki jharoo lagane laga, to usne mujhe pichche se daboch liya, aur gandi baat ki.

Ans. Usne bola, muth maar, nahi to tujhe bahut maroonga. Usne mera munh bhi daab diya. Ans. Usne kaha gand de, nahi to bahut maroonga. Uske baad, Sunil ne mera kapde uttar diye aur meri gand mari, mujhe chusa raha tha, aur maar bhi raha tha. Ans. Main chilla raha tha. Sunil ne kaha, chillao mat, nahi to aur maroonga. Usne mujhe kafi der tak nahi choda, aur kah raha tha, ki kisi ko ye baat agar pata chali, to tujhe jaan se maar doonga.

6. During cross-examination, on being asked if he uses the rubber solution, used to fix puncture at home, he stated that now he was not taking the same but earlier he used to drink it around 2 months back. On being asked whether he throws the tubes in the toilet after using the solution, he replied in the affirmative. On a Court question being posed as to what he did with the rubber solution tube, he stated ‘panni me ye rumal me dal kar, usko pita tha’. On being asked that did the appellant scold and slap him on 16th May, 2013 because he had thrown the rubber solution tube in the toilet, he answered in affirmative.

7. Elder brother of victim child (PW-7) corroborated the version of the victim child.

8. Dr. Vaibhav Gulati (PW-3), CMO, BJRM Hospital, Delhi identified the handwriting and signatures of Dr. Haaris Rasheed who had medically examined the appellant on 18th May, 2013 and exhibited the MLC of the appellant as Ex. PW-3/A.

9. Dr. Mohit Tiwari (PW-4), CMO, BJRM Hospital, Delhi stated that he was directed to depose on behalf of Dr. Inder Bhushan Verma who had medically examined the victim child on 18th May, 2013. He identified the handwriting and signatures of Dr. Inder Bhushan Verma on the MLC Ex. PW-4/A. On examination, the victim child was referred to SR Surgery for further examination. He further stated that he had seen notes prepared by Dr. Narender, SR Surgery, on the MLC, wherein on local examination, following injuries were found:

(i) One partially healed abrasion was found present at 6