The status report filed by the Police Commissioner of Gurgaon on the investigation into the alleged rape of a 3-year-old girl and the preliminary counter submitted by the child’s parents show the stark divergence in the ways in which the police and the family viewed the evidence in the case.
The Supreme Court on Wednesday described the handling of the case by the Gurgaon Police and Child Welfare Committee (CWC) as “shameful” and “insensitive”, and handed the investigation to a Special Investigation Team comprising three woman IPS officers.
The 19-page status report submitted by Police Commissioner Vikas Arora on March 24 formed the core of the Haryana Police’s defence before the apex court.
The court observed that the police had, “for wholly unjustified and extraneous reasons, sought to dilute the offence by erroneously classifying it under Section 10 of the [Protection of Children from Sexual Offences] Act”.
During investigation, the police had dropped Section 6 of the POCSO Act, which deals with “aggravated penetrative sexual assault”, and substituted it with the lesser offence of “aggravated sexual assault” under Section 10.
Additional Solicitor General Aishwarya Bhati told the court on Wednesday that the sections were changed on the basis of the CWC’s observation report (of February 6), and the statement of the survivor child.
The CWC report claimed, as the affidavit submitted by police before the SC said, that when the child was shown an incorrect hand-drawn candy, she drew a correct one herself, which established that she was “in no state of confusion” regarding the sweet, which her parents alleged was a reference to an act of sexual assault.
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The police interpreted this observation of the CWC, along with the lack of incriminating evidence to the contrary, to mean that there was “no offence punishable under Section 6 of the POCSO Act”.
Medical examination reports from the Gurgaon Civil Hospital and a private hospital, the child’s statement under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and analysis of CCTV footage were placed on the record, along with details that allegedly showed “no movement of the victim with the accused towards the demarcated place” — the maintenance room that the child called the “kachra house”.
The police commissioner’s affidavit said that MyGate app data, call detail records, statements of society staff, guards, and the three accused, and the forensic referral of hard disks supported the revised view. The police maintained that they had acted with due diligence, including producing the child before the magistrate and CWC.
“The present petition is apparently triggered on account of the fact of the time consumed in the conduct of investigation, however, this Hon’ble Court may kindly be benign of the fact that the matter in hand complained of commission of serious offences, where the material collected during investigation initially could not substantiate the date, place, time and manner of occurrence and the identity of the assailants,” the affidavit said. “It was only after conduct of in-depth investigation and analysis of the material collected that the investigating agency was zero in on the accused,” it said.
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The parents’ preliminary rejoinder accused the police of “glaring violations of POCSO” and a “shocking” non-application of mind.
The rejoinder, prepared by Advocates Namisha Gupta and Pranay Chitale, highlighted the child’s “unwavering” and “consistent” testimony across multiple records submitted by the police themselves.
It said the Civil Hospital’s medico-legal report had recorded the child describing a “fried” candy, which the male accused allegedly put in her mouth as noted in her statement before the magistrate.
The parents argued that the CWC’s observation on the drawing was being twisted to claim the child understood a “real” kind of candy, which ruled out penetrative assault. “No real…in the world has this description,” the rejoinder stated, calling the police conclusion evidence of “complete non-application of mind or biasness to shield the accused”, whom they arrested after a month and a half.
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The parents’ submissions also pointed to alleged procedural lapses that the SC echoed: failure to report the offence to the Special Court or CWC within 24 hours as mandated by Section 19(6) of the POCSO Act; the child’s statement not being recorded at home (Section 24(1)); face-to-face identification of accused without protective measures; and repeated medical examinations lacking dignity (Section 27).
