The significance of medical evidence in cases of sexual assault, particularly the likelihood of injury in cases of anal sex and the importance of partial insertion of the penis in establishing the offense under Section 377 IPC.

Mukta Gupta, J.

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 377/342 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 Cr.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. Rs.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 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 Rs.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