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Tej Kumar @ Tinku vs State on 24 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th September, 2018
% Delivered on:24th May, 2019

+ CRL.A. 860/2016

TEJ KUMAR @ TINKU ….. Appellant
Represented by: Mr. Sumer Kumar Sethi,
Advocate
versus
STATE ….. Respondent
Represented by: Mr. Ashok K. Garg, APP for
State with SI Sohan Lal, PS
Prasad Nagar.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal Tej Kumar @ Tinku challenges the impugned
judgment dated 28th February 2014, whereby he was convicted for the
offences punishable under Sections 377/Section342 IPC read with Section 6 of
Protection of Children from Sexual Offences Act (in short POCSO Act) and
the order on sentence dated 4th March 2014 directing him to undergo
rigorous imprisonment for the period of ten years and to pay a fine of
Rs.10,000/-, in default whereof to undergo simple imprisonment for a period
of six months for the offence punishable under Section 6 POCSO and
rigorous imprisonment for a period of six months for the offence punishable
under Section 342 IPC.

2. Assailing the conviction, learned Counsel for the appellant submits
that the Trial Court failed to appreciate that the incident had taken place on
21st December 2012 while the statement of the victim under Section 164

CRL.A. 860/2016 Page 1 of 11
SectionCr.P.C. was recorded on 11th January 2013. Hence, there is unexplained and
inordinate delay of 20 days which casts serious doubts upon his statement
and is a tutored one. ₹20/- currency note which was given by the appellant
to the victim has not been recovered even after thorough search by the police
officers. As per the MLC, there is no injury on the rectum of the victim or
on the male organ of the appellant even though as per the prosecution, there
was insertion of penis. Moreover, Dr. Shyam Sunder (PW-14) in his cross-
examination has clearly stated that if a male of 25 years old has anal sex
with a boy of 6 years old with full insertion of penis, there is every
likelihood that there would be an injury on the anus of the boy, thus,
falsifying the case of the prosecution. The independent witnesses, that is,
Roop Chand (PW-2) and Sonu Kumar (PW-5) have turned hostile and failed
to support the case of the prosecution. The Trial Court has also completely
ignored the defence taken by the appellant in his statement recorded under
Section 313 Cr.P.C. and version of the two defence witnesses Tej Kumar
(DW-1) and Bharat Bhushan (DW-2). The Investigating Officer has stated
the he recorded the statement of the nani of the victim at 7:50 P.M. while
she stated that her statement was recorded at 11:00 P.M. There are material
contradictions in the prosecution story with respect to attempt to sodomy
and sodomy being committed. Nani of the victim in her complaint stated that
she had accompanied the victim to the toilet and was an eye-witness to the
incident whereas in her deposition she has stated that the victim on coming
back to home informed her of the incident.

3. Per contra, Learned APP for the State submits that the impugned
judgment and order on sentence suffers from no illegality.

4. Process of law was set into motion on 21st December 2012 at 6:16

CRL.A. 860/2016 Page 2 of 11
P.M. when information was received regarding an unnatural offence that had
been committed with a boy at I-Block, House No. 16/186, Hardyan Singh
Road. Aforesaid information was recorded vide DD No. 25A (Ex.PW-4/A)
which was assigned to SI Mangej who along with HC Raghu Raj reached
the public toilet, Gali Ambedkar Nagar, Hardhayan Singh Road. On
reaching there, he met the nani of the victim and recorded her statement vide
Ex.PW-3/A wherein she stated that her grandson ‘P’ who was 6 years old
had gone to use the public toilet at 6:00 P.M. situated at Gali Ambedkar
Nagar, Hardhayan Singh Road. She had followed him to the toilet. When her
grandson was in the toilet, the appellant also entered the toilet and bolted the
door from inside. When she heard her grandson crying, she started
screaming for help. Public persons standing there came, banged the door
open and took out the victim and the appellant. When the door opened, the
pant of the victim was down and the public started beating the appellant.
The victim informed her that the appellant had given him ₹20 and was trying
to make him to do ‘galat kaam’. One of the public persons called on 100
number.

5. On the basis of the aforesaid statement, FIR No. 266/12 (Ex.PW-4/B)
was registered at PS Prasad Nagar for the offences punishable under
Sections 342/Section377/Section511 IPC read with Section 4/18 POCSO Act.

6. The appellant was taken to the hospital with Ct. Anil and the victim
was taken to the hospital by Ct. Suresh along with his Nana for their medical
examination. SI Mangej prepared the site plan at the instance of the nani of
the victim vide Ex.PW-13/B. On 22nd December 2012, the appellant was
arrested vide arrest memo Ex.PW-13/D and his personal search was
conducted vide Ex.PW-13/E.

CRL.A. 860/2016 Page 3 of 11

7. Statement of the victim was recorded under Section 164 Cr.P.C.
Documents confirming date of birth of the victim as 18th February 2006
were collected vide Ex.PW-10/A-C. After completion of investigation,
charge sheet was filed. Vide order dated 12th March 2013, charge was
framed for the offences punishable under Sections 342/Section377 IPC read with
Section 6/8 POCSO Act against the appellant.

8. Victim child was examined in Court as PW-1. After ascertaining that
he was capable of understanding the questions put to him and was capable of
giving rational answers thereof, victim child deposed as under:

“Q. With whom you were residing?
Ans. With my Nani
Q. Where did you go?
Ans. I went to toilet after intimating to my Nani
Q. Where did you go for toilet?
Ans. Nani asked me to go outside. Accordingly, I went outside.
Q. Where toilet was located?
Ans. At some distance from my house.
Q. What happened there?
Ans. When I was sitting inside the toilet, one uncle came there and

pushed my water pot inside the toilet and he also entered the
said toilet.

Q. What did said person do?
Ans. That uncle had bolted the door from inside and down his pant

and gave me Rs.20/- and stated that gand mara le.

      Q.          Then what happened?
Ans. That uncle had hugged me from behind and inserted his penis

in my anus. I cried as I felt severe pain. One person opened the
door by pushing hard and rescued me.

      Q.          Then what happened?
Ans. That uncle was beaten by the person who rescued me. Other
persons also came and they had beaten him.

CRL.A. 860/2016 Page 4 of 11
Q. What was the name of the uncle?
Ans. His name was Tinku
Q. Can you identify that uncle?
Ans. Yes
Q. How can you identify him?
Ans. He was working near our house and I saw him there.
Q. Where was the Rs.20/- which was given by the accused?
Ans. The same had fallen in the toilet.
Q. Where did you go after the incident?
Ans. To the house of my Nani and narrated all the incident to my
Nani. At time my mother is also there.
Q. Whether you were taken to the hospital?
Ans. Yes
Q. Whether you appeared before any Judge/Magistrate prior to
this. If yes for what purpose?

Ans. Yes I was brought in the court where my statement was
recorded."

During his cross-examination, he stated:

      "Q.         Who were residing with your nani?
Ans. My mama, mami, mausi, mausa, my mother, my two brothers
were residing with my Nani.
Q. How many rooms have in the house of your Nani?
Ans. Four rooms
Q. Whether there is kitchen and toilet in the said house?
Ans. There is a kitchen at the courtyard and the toilet at the roof.
Q. What is the distance between the house of your Nani and public
toilet?
Ans. It is at some distance but I cannot tell about the distance. The

public toilet is visible from the house of my Nani and vice-
versa.

Q. Whether there was only one toilet there or more
Ans. There were many toilets. Even at the first floor also.
Q. Whether any public person was present when you went to

CRL.A. 860/2016 Page 5 of 11
toilet?

     Ans.         Yes.
Q. For how long accused remained inside the toilet?
Ans. He remained inside for a short while. I cannot tell the duration
in minutes.
Q. When public persons beating the accused whether any member
of your family was present there or not.
Ans. No one was present from my family.
Q. Did you know anyone from the persons who gathered there at
the spot?
Ans. I recognise one chaiwala but I do not know his name. I do not
know the other persons.
Q. How did you go to your house after the incident?
Ans. I went to my house alone.
Q. Who met you in the house?
Ans. My Nani, Mummy and my younger brother were met me in the
house.
Q. Where did you go thereafter?
Ans. Nani called the police. Thereafter, police came there.
Q. Whether police interrogate you?
Ans. Yes. I told all the facts to the police.
Q. Whether did you tell the police in your statement that the

accused had inserted his penis in your anus or not and you felt
severe pain?

Ans. Yes. (confronted with the statement recorded under Section 161
Cr.P.C. on 21.12.2012 wherein it is not so recorded now
Ex.PW-1/DA)
Q. Whether did you tell the police in your statement Ex.PW-1/DA
that the name of the said person was Tinku?

Ans. I had told that his name was Tinku (Confronted with Ex.PW-

1/DA wherein it is not so recorded).

Q. Whether did you tell the Ld. Magistrate in your statement
recorded under Section 164 Cr.P.C. that the name of said

CRL.A. 860/2016 Page 6 of 11
person was Tinku?

     Ans. No.
Q. What does your Mama do?
Ans. He is a driver.
Q. When did your Mama reach home on that day?

Ans. Some one called Mama, thereafter, my Mama reached at home.

Q. Who did tell you the name of Tinku?

Ans. He was working near outhouse in a factory and the said
factorywala told that his name was Tinku.

      Q.     When did he tell his name?
Ans. Much prior to the incident.
Q. What is name of said factorywala?

Ans. His name is Ladoo and the thread of pant are manufactured
there.

Q. What is the distance between the house of your Nani and the
said factory?

Ans. Very close as there is only one house between the house of my
Nani and factory."

9. Nani of the victim stated in her testimony that on 21st December 2012,
when the victim came back from the school at about 6:00 P.M., he told her
that he had to go to the toilet but since there was no light she asked Praveen
to go outside. Accordingly, he went to the public toilet located near their
house. After about 30-45 minutes, the victim returned while weeping and
told her that his maternal uncle had beaten him. She also noticed finger
marks on his cheek. The victim further told her that public persons were
beating the appellant and the tea-vendor had taken him out from the toilet.
She went out of her house and noticed that public persons were beating the
appellant. She made a call to the police on 100 number and also called her
son. She along with the police went to the house of the appellant who was
arrested there.

CRL.A. 860/2016 Page 7 of 11

10. Roop Chand (PW-2), deposed that he was running a tea shop opposite
the public toilet at Bapa Nagar. On 21st December 2013, at about 6:00 P.M.,
he was present at his shop and saw that some people had gathered near the
toilet who were watching some quarrel and due to curiosity he also went
there but he was standing behind to guard his shop. The quarrel was going
on between Manish and Tej Kumar. Tej Kumar was in a drunken condition
and there was blood coming out from his mouth. After some time, PCR Van
came there and took Tej Kumar.

11. Sonu Kumar (PW-5) deposed that he was working at the Public Toilet
at Bapa Nagar. In the winter of 2012, he was inside his room which was
located outside the public toilet. At about 3:00 P.M., he saw that there was a
crowd outside the public toilet. When he came out from his room public
persons told him that one boy was inside the toilet. He stated that it was a
small boy but he does not know how the boy got inside the toilet.

12. Rajesh Kumar (PW-10), Primary Teacher at Primary School, PL Road
stated that as per the school record, the victim was admitted to school on 27th
July 2012 and his date of birth was 18th February 2006.

13. Dr. Shyam Sunder (PW-16), Medical Officer, Kalawati Hospital
stated that on the day of the incident at about 10:30 P.M., the victim aged 6
years was brought in the hospital with the history of sexual assault by a male
of 25 years in the neighborhood. As per MLC (Ex.PW-16/A), no fresh injury
was noticed on the victim. In his cross examination, he stated that if a male
of 25 years old has anal sex with a boy of 6 years old with full insertion of
penis, there is every likelihood that there would be an injury on the anus of
the boy. However, injury may not appear if there is partial insertion of penis.

14. Dr. Avinash (PW-14), Emergency Medical Officer, DDU Hospital

CRL.A. 860/2016 Page 8 of 11
stated that on the day of the incident the appellant was examined by Dr.
Ramesh, Senior Resident under his supervision vide MLC (Ex.PW-14/A).
After examination, his blood and semen sample were taken. There was
nothing in the medical reports to suggest that the patient could not perform
sexual intercourse.

15. Tej Kumar @ Tinku in his statement recorded under Section 313
Cr.P.C. stated that on the day of the incident, a quarrel had taken place
between him and Manish, maternal uncle of the victim. He was consuming
liquor near the public toilet and Manish was also consuming liquor near the
public toilet. Manish offered a drink to him and thereafter gave him some
money to fetch half a bottle of liquor. Since, he was under the influence of
liquor, he lost the money which resulted in a quarrel between him and
Manish who also beat him up.

16. Tej Kumar (DW-1), deposed in sync with his statement recorded
under Section 313 Cr.P.C.

17. Bharat Bhushan (DW-2), brother of Tej Kumar, stated that on 21st
December 2012 at around 5:30 P.M. someone informed him that his brother
was in the middle of a quarrel. Accordingly, he rushed in front of the public
toilet where the quarrel was going on between Manish and his brother. He
stated that Manish was residing behind his gali. His brother informed him
that Manish was beating him as he had lost ₹500/- that Manish had given
him. He took his brother to his house and informed him that he had made a
complaint to the police. After a while, the police reached their house and
took his brother to the hospital and asked him to come and make the
complaint at the police station. On reaching the police station he was
informed that they had already registered a case and thus whatever he had to

CRL.A. 860/2016 Page 9 of 11
say he would have to depose in front of the court.

18. Contention of learned counsel for the appellant that a doubt is caused
in the prosecution case due to the inordinate delay of 20 days in recording
the statement of the victim under Section 164 Cr.P.C. deserves to be rejected
for the reason PCR call was made immediately and FIR on the statement of
the victim was registered on the same date. Victim was also medically
examined whereafter the appellant was arrested. The stand of the victim in
his statement under Section 164 Cr.P.C. is not different from his complaint.
Relying on the deposition of Dr. Shyam Sunder in his cross-examination
that if a male of 25 years old has anal sex with a boy of 6 years old, there is
every likelihood of an injury, learned counsel for the appellant has
contended that the version of the victim is not corroborated by his medical
evidence which assertion fails to notice further deposition of Dr. Shyam
Sunder who stated that injury may not appear if there is partial insertion of
penis. Even with partial insertion of penis offence under Section 377 IPC
would be made out. The victim has clearly stated that in the scuffle the ₹20
note fell down and hence his testimony cannot be disbelieved for non-
recovery of the ₹20 note.

19. Though the case of the appellant in his statement under Section 313
Cr.P.C. and in his deposition as DW-1 is that he was falsely implicated at
the instance of the maternal uncle of the victim with whom he had a quarrel,
however no such suggestion has been given to the victim. In view of the
evidence led by the prosecution this Court finds no infirmity in the
impugned judgment of conviction or order on sentence.

20. Appeal is accordingly dismissed.

21. Copy of this order be sent to Superintendent Central Jail Tihar for

CRL.A. 860/2016 Page 10 of 11
updation of the Jail record and information to the appellant.

22. TCR be returned.

(MUKTA GUPTA)
JUDGE
MAY 24, 2019
'vj'

CRL.A. 860/2016 Page 11 of 11

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