C. HARI SHANKAR, J.

1. While travelling the rocky terrain of criminal justice-dispensation, the court is, at times, confronted with the necessity to negotiate between the apparently conflicting considerations of ensuring that an offence, ex facie revolting in nature, does not go unpunished, and, at the same time, that the innocent is not subjected to the unbending rigour of the law. This case is one such.

The Facts

2. On 13th December, 2012, 'S' a 7-year-old male child, was admitted in the Ashiyana Boys' Home, Alipur. He remained there till 11th January, 2013. During his sojourn at the Ashiyana Boys' Home, 'S' was, as the evidence has revealed and as is undisputed, sodomised.

3. On 11th January, 2013, 'S' was shifted, by Dr. R.P. Singh, under whose care he was, at the time, to the B.R. Ambedkar Hospital (hereinafter referred to as "the Hospital"), where he was detected to be HIV positive. In view thereof, 'S' was referred, on 15th January, 2013, to Child Survival India (CSI), an NGO dealing with HIV positive patients.

4. While he was under the care of the CSI, 'S', apparently, disclosed the fact of him having been sodomised during his tenure in the Ashiyana Boys' Home. This resulted in the following communication, from the CSI to the Child Welfare Committee, on 4th February, 2013 (Ex. PW-7/A):

"04/02/2013

To

The Child Welfare Committee

Asha Kiran Complex,

Avantika Rohini,

Delhi-85

Sub:- Regarding child sexual abuse

Respected Madam,

Child Survival India an NGO run a community Centre for HIV infected people with support of Delhi state AIDS control Society. Few days ago a 7 years old male child was referred by ART centre Ambedkar Hospital for ART imitation. The child belongs to Ashiyana boys Home Alipur. During the counselling session, child opened up that children of Ashiyana home sexually abuse and harassment daily. So, he does not want to go back to Ashiyana home. It might be happening with the other children also. So, I request you to please take further action to stop such kind of activities among children.

Thanks and Regards

Sheela Mann

Project Director CSI"

(Emphasis Supplied)

5. The CWC, thereupon, addressed a communication (titled an "Order"), dated 13th February, 2013, to the Station House Officer (SHO), PS Shahbad Dairy, drawing his attention to the above extracted communication from the CSI and requesting him to intervene. The said communication read as under:

"CHILD WELFARE COMMITTEE

Asha Kiran Complex

Avantika Sec.-1, Rohini, New Delhi-110085

ORDER

As per report submitted by Child Survival India a 7 years old male child referred by ART Centre Ambedkar Hospital for ART imitation the above said NGO, has alleged that he was sexually abused and harassed by the children of Ashiyana Boy's Home. The SHO of PS Shabaad Dairy is directed to get the said child medically examined at the BSA Hospital to cooperate his statement given to the above said NGO.

Sd/-

13/2/13

SHO

P.S. Shahbad Dairy"

6. As the facts stated in the communication from the CWC prima facie indicated commission of an offence, under Section 377 of the Indian Penal Code, 1860 (IPC) and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, investigation of the case was handed over to SI Manoj Kumar (PW-15) and an FIR was registered. The FIR merely reproduced the afore-extracted communication, dated 13th February, 2013, from the CWC to the SHO.

7. On 14th February, 2013, 'S' was taken to the Hospital, where he was examined and MLC (Ex. PW-9/E) was prepared. A sample of his anal swab was also taken.

8. Relevant extracts, from preliminary entries in the MLC of 'S' as entered by Dr. Kuldeep Singh (PW-3), may be reproduced, thus:

"Alleged H/O sexual assault (sodomy) about one month back (multiple episodes) at Child Home Alipur as told by Child, I/O and Ms. Sheela Mann.

Patient has taken Bath and changed clothes multiple times after above said incidents as told by Child, I/O and Ms. Sheela Mann.

H/o undergoing treatment for HIV.

O/E

Pt. conscious oriented & c. fair.

Pul