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X (A Minor) vs State ( Nct Of Delhi) on 9 January, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 09th January, 2019
+ CRL.REV.P. 991/2018 Crl. M. (Bail) 1774/2018 (suspension of
sentence)
X (a minor) ….. Petitioner
versus

STATE ( NCT OF DELHI) ….. Respondent

+ CRL.REV.P. 992/2018 Crl. M. (Bail) 1775/2018 (suspension of
sentence)
Y(a minor) ….. Petitioner
versus

STATE ( NCT OF DELHI) ….. Respondent
Advocates who appeared in this case:

For the Petitioner : Mr. Salman Khurshid, Sr. Adv. with Mr. Sulaiman
Khan, Ms. Sanchita Ain, Ms. Azra Rehman and Ms.
Sakshi Kotiyal and Ms. Anshu Kapur, Advs.

For the Respondent : Ms. Kusum Dhalla, Addl. PP for the State with SI
Ashish Kumar

CORAM:
HON’BLE MR. JUSTICE SANJEEV SACHDEVA

ORDER

SANJEEV SACHDEVA, J. (ORAL)

1. The present revision petitions have been filed by Children in

CRL.REV.P 991 992/2018 Page 1 of 13
Conflict of Law. The memo of parties discloses the name of the
petitioners. Registry is directed to conceal the names of the petitioners
from the cause list as well as the record of this case so that the names
and identities are not disclosed.

2. Both the revision petitions impugn judgment dated 10.10.2018
of the appellate court whereby the appellate court has rejected the
appeals filed by the petitioners against the judgment of the Juvenile
Justice Board dated 16.08.2018 holding the petitioner in Crl. Rev. P.
991/2018 guilty of the offence punishable under Section 377 IPC and
petitioner in Crl. Rev. P. 992/2018 guilty of the offence punishable
under Section 307/34 IPC.

3. Petitioners have been sent to protective custody for their proper
rehabilitation for a period of six months.

4. The case of the prosecution is that the victim was employed in
the Bakery owned by the father of the petitioners. On 15.10.2014,
during morning hours, the petitioner in Crl. Rev. P. 991/2018 forcibly
sodomised the victim and when the victim complained to the brothers
of the said petitioner all of them including the petitioner in Crl. Rev.
P. 992/2018 inserted an iron rod into the anal opening of the victim
and also threatened to kill him.

5. Initially the victim did not disclose the incident to anyone. A
DD entry was made alleging that an accident had taken place on

CRL.REV.P 991 992/2018 Page 2 of 13
account of which victim had sustained injuries. The victim was
initially taken to a local doctor who gave first aid. However, since the
bleeding did not stop, the victim was taken to Lok Nayak Jai Prakash
Narayan Hospital (in short LNJP Hospital). When the doctor at LNJP
Hospital conducted an examination, the doctor suspected foul play
and accordingly treated it as a MLC case and informed the police.

6. As per the prosecution when the police reached the spot, the
police was given a statement that an accident had taken place and no
foul play was alleged.

7. Medical examination and surgery of the victim was conducted
in the hospital. It is the case of the prosecution that on 03.12.2014
after approximately 58 days after the incident, the mother of the
victim complained that victim had been sexually assaulted and
thereafter injury was caused by inserting an iron rod. FIR was
registered, investigation conducted and the final report was filed.

8. Since the petitioners were juvenile, the trial was separated from
the other accused and they were tried by the Juvenile Justice Board. It
is informed that the proceedings qua other accused is still pending and
trial is underway.

9. During trial 7 (seven) witnesses who claimed to be eye-
witnesses gave their deposition before the Juvenile Justice Board. All
of them contended that the victim while working in the Bakery had

CRL.REV.P 991 992/2018 Page 3 of 13
taken a break for breakfast and when he was keeping money at
Machaan/Taand/Parchaati (mezzanine) which was at a height of
about 6 ft. fell down on the handle of a machine which is used for
baking and the said handle entered in the anus of the victim and he
sustained injuries. The victim was taken to a nearby clinic of PW8 and
when bleeding did not stop, the victim was taken in the car of the
father of the petitioners to LNJP hospital.

10. The victim was examined as PW-10, he categorically deposed
that the petitioner in Crl. Rev. P. 991/2018 took him to the
Machaan/Taand/Parchaati (mezzanine) forcibly took off the pant and
did unnatural sex with him. Thereafter, he came down from the
mezzanine and informed the elder brother of the petitioner but the
elder brother also abused him and threatened that this fact should not
be disclosed to anyone. Thereafter, the petitioner in Crl. Rev. P.
992/2018 along with others caught hold of him, forcibly took him on
the Machaan and the elder brother inserted an iron road into the anus
of the victim.

11. Attending doctor at LNJP Hospital was also examined as a
prosecution witness to prove the MLC as also the nature of injury. He
deposed that intra operative findings were “perineal lacerated wound
at 6’O Clock position with 4×2 cm. involving anal sphincture”. He
also deposed that there was a laceration in posterior rectal wall
involving 10 cm. of rectal. Doctor deposed that injury was possible

CRL.REV.P 991 992/2018 Page 4 of 13
through an elongated hard object but exact cause of injury could not
be given which could be given by forensic expert.

12. Juvenile Justice Board disbelieved the testimony of PW1 to
PW8 on the ground of numerous contradictions and inconsistencies in
their testimony. The Board observed held as under:

“34. However, the testimony of PW-1 to PW-8 does not
inspire the confidence of Board due to numerous
contradiction and inconsistency in their testimonies.
Each one of them i.e. PW-1 to PW-7 have given different
version with respect to the presence of CCL ‘Y’ and ‘X’
at the spot. As per PW-1, both the CCLs were present at
the bakery at the time of incident and CCL ‘X’ even
fainted after seeing the bad condition of victim. However,
as per PW-2, CCLs were upstairs at the time of incident
as they were having school exam. As per PW-3, the CCLs
were not even present at the spot at the time of incident
as they were in their school for examination. As per PW-
4, both the CCLs were getting ready for their school at
the time of incident. PW-5 has deposed that CCLs were
not present at the spot at the time of incident. As per PW-
6 and PW-7, CCL ‘Y’ had gone to dress himself for the
school while CCL ‘X’ was on the counter of the shop.
Thus, there is no corroboration in the testimony of
witnesses PW-1 to PW-7.

35. Further, each one of the witness i.e PW-1 to PW-7
except PW-3 and PW-5 had deposed that they had taken
the victim to one local doctor i.e. Dr. Noori. However,
PW-8 i.e Adil had deposed that he is running a clinic in
the name of Noori Clinic and he is practicing in the said
clinic and he had examined the victim. Thus, if we believe
the testimony of PW-8, then there is no Dr. Noori in the

CRL.REV.P 991 992/2018 Page 5 of 13
vicinity but a Noori Clinic which makes the version of
PW-1 to PW-7 even more doubtable. It is important to
note that the witnesses PW1 to PW7 are either working
in the bakery run by father of CCLs or are working/
residing in neighbouring area. The bare testimony of
PW1 to PW7 appears to be tutored and inclines the
Board to hold that PW-1 to PW-7 are not disclosing the
true facts for reason best known to them.”

(names of CCLs concealed)

13. With regard to the deposition of the victim, Juvenile Justice
Board has observed as under:

“37. The victim has categorically deposed in his
examination and in his statement recorded u/s 164
Cr.PC qua the brutal manner in which he was attacked
by the CCLs. The Board is unable to find any
inconsistency in the examination and cross-
examination of victim PW-10 worthy of throwing a
doubt on his testimony.

38. ***** ***** *****

39. In the present case, the sole testimony of victim
inspires confidence of the Board. Nothing adverse has
been culled out in the cross-examination of victim W-
10 which can throw a doubt upon his version. The
statement of PW-10 coupled with his statement
recorded u/s 164 Cr.PC i.e Ex.PW-l0/A and
corroborated by the MLC Ex.PW-14/A is sufficient to
prove the case against CCLs. Rather if we peruse the
MLC, it can be seen that the concerned doctor had on
his own suspected foul play in the injuries sustained by
the victim. The concerned doctor had ruled out the
history of falling from height as the injury was only in

CRL.REV.P 991 992/2018 Page 6 of 13
the anal area and not over the entire body. In case the
victim had fallen from a height onto the handle of the
oven and then on to the floor, it is but natural that he
must have sustained some bruises or abrasion over the
remaining body parts as well in addition to the anal
area. However, this is not the scenario in the present
case. PW-14 Dr. Vikrant has explained in detail the
nature of injuries and severity thereof sustained by the
victim.”

14. With regard to the contention of the petitioners that there was
delay in registering the FIR, Juvenile Justice Board was of the view
that delay has sufficiently been explained. Juvenile Justice Board has
relied on the judgment of the Supreme Court in ‘Bathula
Nagamalleswara Rao Ors. Vs. State Rep. By Public Prosecutor,
2008(2) CRIMES 188 (SC) wherein the Supreme Court has held that
delay in lodging the FIR, if justifiably explained, will not be fatal to
the prosecution case.

15. In the present case, with regard to the delay, Juvenile Justice
Board has held as under:

“………In the present case, the victim is minor child of
tender age who had undergone immense mental and
physical trauma. The victim has undergone intensive
medical treatment. It is also to be noted that victim was
working as a labour in the bakery run by father of CCLs
and there are allegations of continuous threats to the
victim and his family members. Thus, it is but natural that
victim must have been under so much stress due to his
physical, medical and mental condition that he had no
choice but to remain quite about the incident.

CRL.REV.P 991 992/2018 Page 7 of 13

It is argued by Ld. Defence Counsel that the delay in
registration of FIR is because of the reason that family
members of victim wanted to extort money from the
CCLs. However, no previous enmity has been reported
between the victim and CCLs. The defence has not led
any evidence to prove that family of victim tried to extort
money from the family of CCLs. No evidence has been
led as to how much money was demanded, the manner in
which it was demanded and when it was demanded by
mother or uncle of the victim from the family of CCLs. In
Gurbachan Singh V. Satpal Singh, AIR 1990 SC 209, it
was held by Hon’ble Apex Court that prosecution is not
required to meet any and every hypothesis put forward by
the accused. Under the facts and circumstances of the
present case, we do not find any cogent and convincing
reason for doubting the correctness and truthfulness of
the FIR which was promptly lodged by the mother of the
victim as soon as she came to know about the true facts.”

16. The Juvenile Justice Board was satisfied that the prosecution
has proved the case beyond reasonable doubt and accordingly
convicted the petitioners.

17. The appeals filed by the petitioners have been rejected by the
appellate court impugning order dated 10.10.2018. The appellate court
has held as under: –

“7. A bare reading of the cross-examination of
victim/PW10 makes it clear that admittedly CCL ‘X’ (a)
‘Z’ had taken the victim boy to the ‘Machaan’ (a sort of
mezzanine within the bakery) on the pretext of showing
him something. Thus, the presence of this CCL/appellant
as well as the victim boy there at the spot on the fateful

CRL.REV.P 991 992/2018 Page 8 of 13
day time are clearly admitted even on behalf of the
defence side. The testimony of 10 also categorically
deciphers the role of other brothers (Including other
CCL/appellant namely ‘Y’) and there is not even a single
suggestion in his entire cross examination either
regarding their role as deposed by PW10/victim or even
about their presence there at the spot immediately after
the alleged incident of sodomy. The PW10 has
categorically deposed that it was CCL ‘Z’ (son of the
bakery owner) who took him to the Machaan, took off his
trouser and forcibly did unnatural intercourse with him.
He has also categorically deposed that thereafter CCL
‘Y’ caught hold of him and one Rashid penetrated iron
rod into his anus. His statement u/s. 164 Cr.P.C is
corroborative of his testimony as above and the same has
been proved on record as Ex.PW10/A. In the name of
rebutting all these aspects of deposition, it was merely
suggested that the CCLs were falsely implicated on
account of hatred and personal enmity. However, as a
matter of fact, it could not be brought on record even to
the prima facie extent as to how and for what reasons
there was hatred or personal enmity between the parties.
It is also worth mentioning here that during the cross
examination of PW9 (mother of the victim) and PW11
(uncle of the victim), it was tried to give a new twist to
the defence that the motive behind the initiation of the
present proceedings was to extort money. However,
nothing such could be brought on record even to the
slightest extent. It was not even indicated during the
entire defence as to who had (allegedly) demanded
money and from whom.

8. As far as the delay in lodging FIR is concerned, it
finds sufficient explanation thereof in the testimony of
PW9 and PW11 i.e mother and uncle respectively of the
victim. It is also worth mentioning here that in the

CRL.REV.P 991 992/2018 Page 9 of 13
context of our society, some sort of social stigma is
attached with the incidents of like nature and generally
the delay occurs in deciding whether or not matter be
reported to the Police. In the given context, the Master-
Servant relationship between the bakery owner and the
victim child could also be another cause of not reporting
the matter to the police at the very first instance. Even
the mother of the victim child has deposed in her cross
examination that she had never been to Delhi prior to the
incident in question. She had appended her thumb
impression on her testimony which shows that she is an
illiterate lady. Thus, the socio-economic as well as
educational status/standard of the victim and his family,
could be another cause of delay in setting the machinery
into motion. Thus, the delay cannot be said to be fatal in
the given context.

9. As far as the defence version/ground of the appeal
(to the effect that the victim child unfortunately fell down
on the handle of ovan in the bakery) is concerned, it does
not appear even to be a plausible explanation of the
injuries received on the private part of the body i.e even
the PW14 i.e Dr. Vikrant Akulwar (examined on
25.11.16) who had examined the victim child had
suspected a foul play as has been duly deposed by him.
He has deposed even to the extent of saying that the
patient was having acute retention of urine and was
suffering faecal inconsistence which means loss of ability
to hold stool. As per his MLC there was laceration in
posterior rectal wall involving 10 cm of rectal which
injury was possible through an elongated hard object.

10. As far as the findings of the JJB-V are concerned,
these are well reasoned. It has duly been substantiated
therein as to why the testimony of PW1 to PW8 was
found and observed to be unworthy of reliance. Ld. JJB
has justifiably relied upon the testimony of victim/PW10,

CRL.REV.P 991 992/2018 Page 10 of 13
mother of the victim child PW9 and uncle of the victim
child examined as PW11 as well as the corroborative
medical evidence in support thereof. Inserting some hard
object into the anus of a child is a heinous act. The Ld.
JJB has duly observed in para No.39 of the impugned
judgment that the concerned doctor had ruled out the
history of falling from the height as the injury was only in
the anal area and nowhere; else. Had the victim child
fallen on the handle of some ovan or on some pipe-like
object it was not at all possible to sustain the injuries in
the anal area only. It has also duly been explained in
para No.41 of the impugned judgment as to why the
defence pretext of the extortion of money was not found
to be a reliable defence pretext. On perusal of the record
as also the testimony of the witnesses, I am of the view
that there was no infirmity in the order of the Juvenile
Justice Board as upheld by the appellate court in
returning the finding of guilt, in so far as the petitioners
are concerned. The deposition of the victim is very
categorical and the victim in great detail has explained
as to how the subject offence was committed by the
petitioners. The deposition has been considered by the
Juvenile Justice Board as well as the appellate court in
right perspective and rightly reliance has been placed on
the same. The view of the Juvenile Justice Board that
statements of PW-1 to PW-8 inspire confidence and
does not, in my view, suffer from any infirmity.”

(names of CCLs concealed)

18. Perusal of the record shows that the Trial Court has rightly
disbelieved the testimony of PW-1 to PW-8. Much reliance cannot be
placed on their testimony. They are either related to the owner or are
neighbours of the owner of the bakery. Though that per se is not a
ground to disbelieve any witness but the manner in which they have

CRL.REV.P 991 992/2018 Page 11 of 13
deposed and their very testimony casts doubts on their veracity. This
coupled with the testimony of the victim which is very explicit, shows
that the trial court and the appellate court has rightly rejected the
same.

19. Further, the delay in making a complaint has been sufficiently
explained by the victim. The victim was employed in the factory of
the father of the petitioners and being a young boy of 15 years, who
has suffered trauma, it was not unreasonable for him to have hidden
this fact from others out of fear and shame.

20. Juvenile Justice Board has rightly placed reliance on the
judgment of the Supreme Court in Bathula Nagamalleswara Rao
(supra).

21. Further the MLC which enumerates the nature of injury
sustained by the victim shows that there was an internal injury to the
the posterior rectal wall of the anal of approximately 10 cm.

22. The story of the defence that injury was sustained by falling on
the handle of the door of the equipment is not plausible as no such
injury could have been sustained by the victim by mere falling on the
handle. The MLC shows that the injury was approximately 10 cm on
the posterior rectal wall which implies that the object had penetrated
the anus by about 10 cms. Perusal of the photographs on record shows
that there is insufficient space between the handle and the door for the

CRL.REV.P 991 992/2018 Page 12 of 13
door handle to penetrate 10 cms in the anus.

23. Further, it has also been observed by the Juvenile Justice Board
that such an injury is not possible as there was no other injury on any
other part of the body of the victim. The Board was rightly of the
view that if there was substance in version of the defence then the
victim would have suffered injury not only to the anus but also other
parts on the body of the victim and since no other injury was present,
the Board has rightly disbelieved the version of the petitioners.

24. Keeping in view the facts and circumstances as noticed above, I
find no infirmity in the view taken by the Juvenile Justice Board as
well as taken by the appellate court. I find no merit in the petitions.
The petitions are accordingly dismissed.

25. It is clarified that this Court has neither examined the evidence
nor returned any finding with regard to the ongoing trial before the
sessions court of the other accused persons who are not juveniles.
Sessions Court would be at liberty to decide the case based on
evidence which come before the Sessions Court without being
influenced by anything stated herein.

26. Order Dasti under signatures of the Court Master.

JANUARY 09, 2019 SANJEEV SACHDEVA, J
‘rs’

CRL.REV.P 991 992/2018 Page 13 of 13

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