Point of Law: FIR was initially registered under Sections 323/354(D)/498A/509/506/34 IPC and it was only when all three victims were examined and their statements were recorded under Sections 161 and 164 Cr.P.C. that Section 10 of the POCSO Act and Section 377 IPC came to be added.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The petitioners have preferred the present petition under Section 482 Cr.P.C. seeking quashing of FIR No. 218/2018 registered under Sections 498A/323/354D/506/509/34 IPC at Police Station New Friends Colony, Delhi and the proceedings emanating therefrom, as well as stay of the proceedings pending before the Trial Court in SC No. 351/2019.

2. Briefly stated, the facts as narrated in the petition are:-

(i) Petitioner No. 3 (Sunny Sharma) got married to respondent No. 2 (Vipra Sharma) in the year 2007 and two children-one daughter, namely ‘AA’, and one son, namely ‘AD’, were born out of the marriage. Petitioner No. 1 (Dharamveer Sharma) & petitioner No. 2 (Nishi Sharma) are the parents of petitioner No. 3 (Sunny Sharma).

(ii) On 18.08.2018, respondent No. 2 filed a complaint with the SHO, Police Station New Friends Colony, Delhi, alleging harassment and torture. It was stated in the complaint that she has been facing physical, mental, financial and emotional abuse for last 11 years. It was further alleged that she was beaten by her husband for not obeying the instructions of her father-in-law. It was also alleged that her husband forced her to do unnatural sex and on refusal she was beaten by him. It was further alleged that petitioner No. 1 (Dharamveer Sharma), i.e. the father-in-law, had made advances at her and offered Rs.20,000/- to become his friend and not to treat him as her father-in-law. It was further stated that he used to send her late-night messages, mentioning ‘Love you soulmate’. When she informed her husband, she was physically beaten. She suspected her husband’s character and when she complained to her in-laws, they ignored.

(iii) It was further stated that the husband touches the private part of the son ‘AD’ (aged 6 years) and that she never liked the way he hugged and kissed the daughter ‘AA’ (aged 10 years). It was also stated that the mother asked her son to give lip to lip kiss.

3. On this complaint, initially the present FIR came to be registered on 21.08.2018 under Sections 323/354(D)/498A/509/506/34 IPC. On 26.08.2018 & 30.08.2018, the statements of the minor son and daughter were recorded under Section 161 Cr.P.C., wherein allegations relating to offence punishable under Section 10 of the POCSO Act were made. Further, the statements of the complainant and the two minor children under Section 164 Cr.P.C. were recorded on 27.08.2018 & 31.08.2018 respectively. The minor daughter stated that her father used to touch her inappropriately. He used to put his hand on her waist and also inside her pant. Even on her refusal, he used to do it. When her mother tried to stop him, he used to claim that they were his children as well. It was further stated that despite her refusal, he installed a camera in the changing/dressing room, the footage of which not only come on the TV screen but also in the mobile phones of petitioners No. 1 to 3. The minor son stated that his father used to do wrong acts with him. He further stated that petitioner No. 3 used to kiss on his cheeks with such a force that the cheeks would turn black. When he used to come out after taking a bath, his father would touch his body parts like penis and bums. It was also alleged that when he was younger and used to sleep in between his parents, his father used to put his (i.e. the child victim’s) leg in his panty.

4. On the basis of the aforesaid statements, Section 377 IPC and Section 10 of the POCSO Act were added to FIR No. 218/2018.

5. During investigation, petitioner No. 3 (Sunny Sharma) handed over two pen drives alongwith transcripts and other documents claiming false implication by respondent No. 2 and her family members. One of these pen drives was sent to the FSL for examination.

6. It is worthwhile to note that on a complaint dated 21.08.2018 given by petitioner No. 2 (Nishi Sharma), who is mother of Sunny Sharma, FIR No. 34/2019 came to be registered on 01.02.2019 under Sections 354/323/341/506/509/34 IPC at Poli