HARI DEV ACHARYA Vs. STATE

JUDGEMENT

(1.) The above-noted petitions have been filed under Sec. 482 Cr.P.C. on behalf of the petitioners assailing the summoning order dtd. 22/11/2018 passed by the learned ASJ-01/Special Court (POCSO), South District, Saket Court, New Delhi in CIS/SC No. 220/18 as well as the supplementary charge sheets filed on 22/5/2018 and 22/8/2018 in the aforesaid case.

(2.) Briefly stated the facts involved in the present case are that on a complaint lodged by the child victim/complainant on 4/9/2017, FIR No. 304/2017 came to be registered under Sec. 377 IPC and Sec. 10 of the POCSO Act against one Nikhil Arya and others. In this complaint, the child victim had alleged that during his stay at the stated Gurukul, he was harassed for the last one and half month. It was further stated that on the intervening night of 04/5/8/2017 at about 12:50 in the night, Nikhil Arya, after awakening him, took him to the teacher"s room and sexually exploited him. The child victim immediately informed the same to one Raman and thereafter went to Police Station Hauz Khas. His mother was called to the police station at about 2:30 in the night and to avoid any insult, they entered into a compromise under the pressure of Rampal, Subhash, Pradeep, Bhupesh and Yogesh. It was stated that Raman, who had supported the complainant, was rusticated from the Gurukul. It was further stated that thereafter in presence of entire class, the child victim was physically beaten with kicks, fist and punches. It was also stated that on 2/9/2017 between 11 a.m.-12 p.m. when he visited the washroom, Nikhil was already present there. After gagging the complainant"s mouth, Nikhil committed the offence of sodomy. The complainant ran away from there and thereafter, Swami Pranavanand levelled allegations against him of stealing dry fruits and rusticated him from Gurukul. After going home, the child victim narrated the entire incident to his mother and the present FIR came be lodged.

(3.) After completion of investigation, a common charge sheet came to be filed on 12/4/2018 against Nikhil Arya under Sec. 377 IPC and Sec. 6 of the POCSO Act. The names of Yogesh Kumar, Bhupesh Kumar, Pradeep Kumar, Rampal and Pranavanand were kept in Column No. 12. The statements of the child victim under Ss. 161 Cr.P.C. and 164 Cr.P.C. were recorded, wherein he stated that he was forced to enter into the compromise dtd. 5/8/2017 with the accused persons in the Police Station. On the aspect of compromise, statement of ASI Hakam Singh was also recorded. Consequently, a supplementary charge sheet was filed on 22/5/2018 and the five accused persons kept in Column No. 12 of the initial charge sheet were transposed to Column No. 11 for the offence punishable under Sec. 21 of the POCSO Act. However, the name of accused Subhash Chander being inadvertently left out, another supplementary challan came to be filed on 22/8/2018 thereby transposing him from Column No. 12 in the initial charge sheet to Column No. 11. In furtherance of the material placed on record, the Trial Court summoned the present petitioners along with co-accused Nikhil. Subsequently, the Investigating Officer seized the CCTV footage from the cameras installed in the Gurukul. On receipt of the FSL Report with respect to the CCTV footage, a third supplementary charge sheet was filed on 11/4/2019 mentioning that as per the CCTV footage, the child victim had entered the washroom on 2/9/2017 at 11:30 a.m. and left the same at 11:46 p.m. It was also mentioned that Nikhil Arya could not be seen going to the washroom at this time on 2/9/2017. Instead, he was seen present in the Verandah at the relevant time and after that entering the office situated at a considerable distance from the washroom. It was further mentioned that he entered the office at 10:55:18 a.m. and left at about 11:47:37 a.m. It was also mentioned that the presence of the accused Nikhil Arya could not be established from 11:30 a.m. to 11:46 p.m. in the washroom when the child victim is stated to have used it.