Appeal Of the Man Who Sexually Assaulted a 3-Year-Old Boy Stands Dismissed: Bombay High Court

Excerpt

The appellant was charged for committing unnatural carnal intercourse and oral intercourse on the victim boy under Section 377 of the IPC and Sections 6 & 10 of the POCSO Act. He was sentenced to suffer RI for 10 years and to pay a fine of a sum of Rs.25,000/-. In default to undergo RI for a further six months, the appellant has instituted the present Appeal.

Facts

On 27th March 2013, the complainant returned home and offered money to his daughter and the victim boy aged 3 years old for buying chocolates. When the daughter returned, she informed that her brother went with the uncle who lived in the neighbourhood and offered chocolates to the boy. When the complainant approached the house of the accused, he heard the boy crying. When he knocked on the door, he noticed the boy without his underwear, and the accused was present along with him wearing banyan and pants. When asked why the victim was crying, he was told that the boy had got some injuries on his backside in the anal area and on examination of the victim boy, he was found bleeding from the anus. He was brought home in a frightening condition and could not say anything. The next day when he was passing stools, he complained of pain and was crying. The boy then narrated the previous night’s incident that the appellant had inserted his penis in the boy’s anus and mouth. When the complainant approached to question the accused, he was not found at home. The next day evening, when he returned home from work, he confronted the accused and the accused retorted by abusing the complainant. He was then brought to the Police Station.

Arguments before the court

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Learned counsel on behalf of the appellant pointed out the inconsistency in the complainant’s statements and the daughter. Even the delay in lodging the FIR was said to be fatal to the prosecution. It was submitted that medical officers and doctors explained the anal laceration mentioned in the medical report at 12 O’clock position and oedema seen at edges with the wound being reddish-brown in colour. They admitted in the cross-examination that laceration could be caused by internal physiological infection and constipation. Also, there is no mention of the history narrated by the victim’s parents, and the witness admitted that the case is of sexual assault based on the police report. In the absence of any indication in the Chemical Analyser’s report or the Forensic Report, learned counsel asserts that there is no evidence brought on record by the prosecution to attract Section 377 of the IPC.

Regarding the POCSO case, counsel submits that the victim boy’s statement was not recorded under Section 164 of the Cr.P.C. In fact, the victim boy has been brought as a witness by applying Section 311 of the Cr.P.C. If there are two scenarios of one pointing to the guilt of the accused and the other towards his innocence, the view favourable to the accused should be adopted. The cases of Maharaj Singh & Ors Vs. State of Uttar Pradesh & Ors, 1994(5) SCC 188, and Jagjit Singh @ Jagga Vs. State of Punjab 2005(3) SCC 689 were cited. Learned counsel on behalf of the prosecution submitted that they have placed on record cogent and reliable material which is sufficient for holding the accused guilty. Just because of some inflictions, the appellant cannot take advantage of the same.

Court’s observation

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There is some inconsistency in the statement of the complainant as against the affirmation in the complaint, on the aspect of the appellant opened the door after 10 to 15 minutes when the complainant knocked on the door of his house and the aspect whether his daughter went to the appellant’s house and knocked the door. The complainant also explained why he did not immediately approach the police station and stated that he went to the house, but the accused was not present thus had to delay. The neighbour, as a witness, stated that the victim boy was present with his mother when the residents were confronting the accused, and he was seen crying. The witness attested that he noted his anal area to be reddish in colour. On this aspect, the prosecution has proved that the victim boy was traced to the appellant’s room, and it is from this point in time, he had bleeding from the anus. The Court stated that due to the absence of material inconsistency, no doubts should be raised. When the victim was testifying, his credibility was questioned by the appellant’s counsel. Even when read in isolation, the Court believed that the statement is not sufficient to impeach the credibility. Particularly when the victim has identified the appellant as the person who had committed a bad act with him. The victim also showed the place of the urinal and that due to the act, he had trouble at the time of urination. He referred to the previous similar acts and also admitted that he narrated the incident to the Doctor. The case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC page 550 was relied upon. In the medical examination, it was found that unnatural sex was performed. To the question as to whether there are any injuries or patches of semen on the body of the victim, it was answered negatively. The anal laceration and the cause of injury were opined to be by a hard and blunt object. This can be possible via penetration. The Medical Jurisprudence and Toxicology in Twenty-Second Edition and Modi’s suggestion were referred to check for signs that may be discovered if the boy (passive agent) was not accustomed to Sodomy. Therefore, the prosecution has brought on record the cogent evidence establishing that the victim was subjected to sexual assault at the instance of the appellant, and the said assault is in the form of unnatural sex. The mere delay in lodging FIR cannot be said to be fatal to the case of the prosecution as the complainant has offered an explanation in his deposition and which cannot be said to be untrustworthy.

Court’s Judgement

The court found the appellant to be guilty of the offence punishable under Section 377 of the IPC and Sections 6 and 10 of the POCSO Act; hence the appeal is dismissed.

Click here to read the Judgement


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