Del HC | [Sexual Assault of 10-year old minor boy] Variations in child’s statement at stages of investigation & trial doesn’t retract veracity of allegations against accused

Delhi High Court: Anu Malhotra, J., while upholding the decision of the trial court in a case where a 10-year-old minor was sexually assaulted, issued directions for the Jail Superintendent to consider an appropriate programme for the appellant ensuring the following:

  • appropriate correctional courses through meditational therapy
  • educational opportunity, vocational training and skill development programme to enable a livelihood option and an occupational status;
  • shaping of post release rehabilitation programme for the appellant well in advance before the date of his release to make him self-dependent;
  • adequate counselling being provided to the appellant to be sensitized to understand why he is in prison;
  • conducting of Psychometric tests to measure the reformation taking place and;
  • that the appellant may be allowed to keep contact with his family

Facts

In the present case, appellant assailed the impugned judgment and order through which the appellant was charged for offences punishable under Section 10 of POCSO Act and Section 367 of Penal Code, 1860.

Appellant had allegedly kidnapped the victim who was aged 10 years in order that he may subject him to unnatural lust or knowing it to be likely that he would be so subjected to unnatural lust and had thereby committed an offence punishable under Section 376 of IPC.

It has been stated that appellant forcibly put off the trouser of the victim and also removed his trouser and then grappled with the victim with sexual intent and thus having committed an offence punishable under Section 10 of POCSO Act.

Complainant (father of the child) stated that his son aged 10 years went to the grocery in front of the lane and after about half an hour came back crying and told him that the accused caught hold of his hand and took the child inside his house and made the child hold the object through which he urinated in his hand sticking to the child and when the child started crying, accused made the child wear his clothes and left him outside.

When the investigation was done, the child corroborated the aspect of his having been molested by the accused.

On being cross-examined by accused’s counsel, child stated that he had narrated the incident first to his mother and later his father was apprised of the same.

Analysis & Decision

High Court on perusal of the impugned judgment and record available held that, it is apparent that the statement of minor child during examination under Section 164 CrPC and the one made in Court corroborate the factum that the minor child had been forcibly taken away by the accused.

Bench observed that, there is variation in the statements under Section 164 CrPC of the minor child in relation to the accused having stuck his body against that of the child.

Division Bench’s decision in, Court on its own Motion v. State, 2018 SCC OnLine Del 10301 was cited and further referring to the same it was stated that,

‘…dynamics of child sexual abuse create a situation that children rarely disclose sexual abuse immediately after the event and that the set disclosure tends to be a process rather that a single episode and is often initiated following a physical complaint or a change in behaviour”

Hence the Court noted that in the present case it is apparent that there are variations in the statement of the child at different stages of the investigation and the trial but that does not retract in any manner from the veracity of allegations levelled against the accused in view of corroboration of all circumstances of the incident, then by the parents of the minor child and it is thus held that there is no infirmity in the impugned Judgment.

Accused i.e. appellant herein falls within the ambit of sexual assault inflicted in terms of Section 2(i) of the Protection of Child from the Sexual Offences, 2012 (POCSO). The intent of the accused while committing the act on the child is described in terms of Sections 3 & 5 of POCSO Act and thus trial court had rightly drawn the presumption of offence.

In terms of Section 9(m) of POCSO Act whoever commits an offence which falls within the ambit of aggravated sexual assault on the minor thus accused has rightly been convicted by the trial court under Section 10 of POCSO Act, 2012.

Therefore, the deposition of witnesses during trial inclusive of the statement made by the minor child establishes the commission of the offence punishable under Section 367 of IPC, also against the appellant in as much as the act of kidnapping of the minor child from the legal guardianship of his father and dragging him into the house of the accused for commission of an aggravated sexual assault on the minor child was undoubtedly done in order to exercise undue sexual assault inflicted on the minor in terms of Section 12 of the POCSO Act, 2012. [Manoj Tyagi v. State (Govt. of NCT, Delhi), 2020 SCC OnLine Del 469, decided on 25-02-2020]

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