Delhi High Court
Dildar vs State on 24 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of reserving: 13th July, 2026
Date of Decision: 24th July, 2026
IN THE MATTER OF:
+ CRL.A. 1450/2014
DILDAR .....Appellant
Through: Mr. Rajat Mishra, Mr. Himanshu
Yadav, Advs. with Appellant in
person.
versus
STATE .....Respondent
Through: Mr. Satinder Singh Bawa, APP for
the State.
Ms. Astha Adv. DHCLSC with Ms.
Megha Singh, Adv. for prosecutrix.
CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
VIMAL KUMAR YADAV, J.
1. Trepidated by the presence of a stranger, that too in the wee hours of
the night, was sufficient to raise alarm. However it turned out that the
stranger was stranger to the lady of the house, but not to her daughter i.e. the
prosecutrix in the instant case. In the intervening night of 1st & 2nd
September 2012, the lady of the house PW-1, confronted the stranger as to
how come he entered into the house. The stranger fled from the scene but
strangely her daughter also followed him. Matter was reported to the police
through DD No. 6A dated 02.09.2012 (Mark Z-1) which set the police
machinery in action. The duo i.e. Appellant and the prosecutrix who had
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escaped from the scene and stayed at different places i.e. Rain Basera, a
Jungle and possibly house of the brother of the Appellant also, were
ultimately apprehended by the police.
2. The statement made by the prosecutrix Ex.PW-2/A laid the
foundation of the case and FIR Ex.PW-3/A was registered by the police of
PS Nand Nagri under Section 376/452 of Indian Penal Code, 1860
(hereinafter referred to as “IPC“).
3. The requisites of the investigations i.e. production of the prosecutrix
before Child Welfare Committee, her medical examination, her statement
under Section 164 Cr.P.C. and the other incidentals were carried out by the
police.
4. On conclusion of the investigations, a chargesheet was filed under
Section 376/452 IPC. To the charge framed on 24.01.2013 under Section
457/376 IPC, the Appellant pleaded not guilty. The case of the prosecution,
traversing through the examination of 12 witnesses, concluded in the shape
of conviction of the Appellant, who was held guilty under Section 376/457
IPC and was sentenced to undergo punishment of Simple Imprisonment
(“SI”) for 7 years for the offence punishable under Section 376 IPC and for
the offence punishable under Section 457 IPC, Appellant Dildar was
sentenced to undergo Simple Imprisonment (“SI”) for 4 years. Both the
sentences were to run concurrently.
5. The Appellant spent about 1 year, 9 months and 6 days during the
investigation, trial and proceedings of the Appeal, whose sentence was
suspended in terms of the order dated 23.05.2014.
6. While assailing the judgment of conviction, it is contended on behalf
of the Appellant that the Appellant and prosecutrix were having sort of
amorous relationship and it was the prosecutrix who had actually called the
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Appellant to her place on the fateful night. They had consensual sexual
relationship but the mother of the prosecutrix woke up and noticed the
presence which had resulted into registration of FIR. Incidentally, there it is
further submitted that the FIR, in-fact, was lodged under the pressure of the
parents of the prosecutrix whereas she had no complaints against the
Appellant. It is further contended that the Prosecutrix was, as on the date of
incident, was above 16 years of age therefore within her right to establish
consensual sexual relationship which does not amount to rape as per pre-
amended definition of „Rape‟ as provided under Section 375 IPC. In order to
emphasize and establish the aspect of age, learned counsel for the Appellant
has placed reliance on the medical and educational documents of the
Prosecutrix, according to which her date of birth was 27.08.1996. The
incident took place on 02.09.2012 and on that day, the age of the prosecutrix
turns out to be 16 years & 6 days.
7. Learned counsel for the Appellant has drawn the attention of the
Court to the statement of the prosecutrix recorded under Section 164 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) Ex.PW-2/B and elaborated that
the FIR (Ex.PW-3/A) is not the correct narration of the events, rather an
influenced statement given by the prosecutrix under the pressure of her
family members. So is the position, asserted by learned counsel for the
Appellant with regard to her deposition before the Court. The tone and tenor
of the statement of the prosecutrix examined as PW-2 clearly reflects that
she was torn between two conflicting forces and sentiments. On one side,
she, her family and social pressures were working overtime and on the other
hand, her soft corner, due to her infatuation for the Appellant has led to a
situation where the narrative emerging is such that the Appellant cannot be
held responsible, either for committing „criminal trespass‟ with a particular
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object or for committing „rape‟ upon the prosecutrix. It is emphasized that
the act of the prosecutrix in running away with the Appellant clearly reflects
that she not only wanted to marry the Appellant, but also did not want to go
to her home rather to be with the Appellant as reflected in her statement
under Section 164 Cr.P.C. although it has been deposed by her that she
surrendered herself to the Appellant under the promise of marriage.
8. In view of these facts, as asserted by learned counsel for the
Appellant, the Appellant cannot be held responsible and the findings
recorded by learned Trial Court in the impugned judgment are not in
consonance with the factual, actual and legal position. The Trial Court,
according to the counsel for the Appellant, has failed to appreciate the pre, at
and the post incident conduct of the prosecutrix at the relevant times. If the
evidence is comprehensively, collectively and exhaustively appreciated in its
contextual, social and factual parameters juxtaposing it with human
behaviour and conduct, in given set of facts, norms and society with all its
peculiarities, then it can be seen that Appellant is not to be blamed for
anything. Whatever had happened between the Appellant and the
prosecutrix was all on account of the mutual consent, willingness and was
completely voluntary.
9. Learned APP, on the other hand, came up with the plea that the
prosecutrix had barely crossed the threshold of the age i.e. 16 years on the
date of incident and therefore her „consent‟ is immaterial and in any case,
the past conduct and happenings between he proseuctrix and Appellant
cannot be ignored. It has been highlighted by learned APP for the State that
Appellant and prosecutrix were known to each other for the last about 3
years and during those three years also, the Appellant had sexual intercourse
with the prosecutrix. In such circumstances, the „consent‟ becomes
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immaterial since the prosecutrix was less than 16 years of age at that time.
With these contentions, learned APP stood by the impugned judgment.
10. Having gone through the record and the contentions raised by the
rival sides, what emerges on record is that „age‟ is a very important factor
and should be ascertained definitively and, as far as possible, conclusively.
11. As regards the determination of age, the guiding principle is under
Section 94 of the Juvenile Justice Act, 2015, which is almost akin to Rule 12
of Juvenile Justice Rules, 2007 which provides as under:-
“Section 94. Presumption and determination of age.
(1) Where, it is obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the
provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or the
Board shall record such observation stating the age of the child as
nearly as may be and proceed with the inquiry under Section 14 or
Section 36, as the case may be, without waiting for further
confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or
not, the Committee or the Board, as the case may be, shall
undertake the process of age determination, by seeking evidence by
obtaining–
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat
(iii)and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
(3) The age recorded by the Committee or the Board to be the age of
person so brought before it shall, for the purpose of this Act, be
deemed to be the true age of that person.”
12. In a recent judgment Hon‟ble Supreme Court has fallen back on Rule
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12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 qua
age determination in K.P. Kirankumar @ Kiran vs. State by Peenaya Police
Crl. Appeal No.5614/2025 arising out of SLP (Crl.) No. 11287/2025 dated
19.12.2025, where the observations made in Jarnail Singh v. State of
Haryana, 2013 SCC OnLine SC 507, were relied upon, which go as under:
“23. Even though Rule 12 is strictly applicable only to determine
the age of a child in conflict with law, we are of the view that the
aforesaid statutory provision should be the basis for determining
age, even of a child who is a victim of crime. For, in our view,
there is hardly any difference insofar as the issue of minority is
concerned, between a child in conflict with law, and a child who
is a victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007 Rules,
to determine the age of the prosecutrix VW, PW 6. The manner of
determining age conclusively has been expressed in sub-rule (3)
of Rule 12 extracted above. Under the aforesaid provision, the
age of a child is ascertained by adopting the first available basis
out of a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is expressed in a
preceding clause, it has overriding effect over an option
expressed in a subsequent clause. The highest rated option
available would conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent) certificate of
the child concerned is the highest rated option. In case, the said
certificate is available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule 12(3) envisages
consideration of the date of birth entered in the school first
attended by the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to be treated
as final and conclusive, and no other material is to be relied
upon. Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to be
taken into consideration for determining the age of the child
concerned, as the said certificate would conclusively determine
the age of the child. It is only in the absence of any of the
aforesaid, that Rule 12(3) postulates the determination of age of
the child concerned, on the basis of medical opinion.”
The above statutory provision not only clearly points out as to how
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age of a juvenile is required to be determined but the aspect of age of the
victim can also be ascertained on these very parameters, as observed in the
aforesaid judgments.
13. In the instant case, the record brought qua prosecutrix from the first
school attended by her Ex.PW-4/A and Ex.PW-4/B reflects her date of birth
as 27.08.1996. There appears no reason not to consider it as the correct date
of birth, although in terms of requirement of Section 94 of Juvenile Justice
Act 2015 and Rule 12 of Juvenile Justice Rules, 2007, her matriculation
certificate should have been there as a more authentic document.
Incidentally, the said document is part of chargesheet/Court record, albeit
not proved or referred by any of the parties in the evidence. Nonetheless, it
is on record filed by prosecution as reflected in list of documents also at
serial no.9. Therefore, the Appellant can rely on it. This lends corroboration
to the correct date of birth inasmuch as that certificate also records the date
of birth of the prosecutrix as 27.08.1996. It, therefore, can be conclusively
said that the date of birth of the prosecutrix is 27.08.1996 and on the date of
incident i.e. 02.09.2012 she was 16 years(+). The pre-amended Section 375
IPC had age of consent as ‟16 years‟.
14. Against the backdrop of these facts and circumstances, there are two
aspects of the matter, one is to consider only the incident which was
reported and investigated upon, leaving aside the narrative of the Appellant
and the prosecutrix being in a relationship for the past three years prior to
02.09.2012 and during those three years they had established consensual
sexual relations also. In the latter event, the consent becomes immaterial and
that makes the Appellant answerable. No answer is forthcoming, nor could
have been there, in view of the clear cut finding that the prosecutrix was
minor even as per the pre-amended definition of the offence of rape under
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Section 375 IPC more particularly „clause sixthly‟. Whereas, in case of
former, the position may not be as critical as in the latter one. Section 375
IPC is reproduced herein below for ready reference:
“375. Rape.–
A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of
death or of
hurt.
Fourthly.-With her consent, when the man knows that he is not
her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.-With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under sixteen
years of age.
Explanation.-Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape.”
15. There are three statements before the Court, although it is the
substantive statement made before the court, which should be looked into.
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However, in totality of the circumstances, the other two statements cannot
be ignored either.
16. The pursuit of truth, substantial and comprehensive justice is the aim
of the judicial process. In these circumstances, the courts cannot become
technical or hyper technical or mute spectator rather required to ascertain the
factual and actual position. In this context, even a statement which does not
fall into the definition of evidence or substantive statement, but recorded
under oath by a Judicial Authority, in terms of Section 164 Cr.P.C. cannot
be ignored.
17. It is correct that the statement made before the court during the trial is
to be taken as the substantive statement/evidence which is relevant for
consideration. However, statement made „On Oath‟ before a Magistrate
cannot be completely overlooked, effaced or ignored either. It is the
substantial justice, not mere adjudication, which should be the aim and
object of the judicial process. In this context, the observations made by
Hon‟ble Supreme Court in P.Yuvaprakash v. State Represented by the Inspector
of Police., (2024) 17 SCC 684 can be looked for guidance:
“34. The prosecution did not even cross-examine this witness.
Having regard to these overall factors, the Court is of the opinion
that M’s statement under Section 164CrPC contained a truthful
narration of the events. This, in other words, meant that there was
no penetrative sexual assault on her. Therefore, the provisions of
the Pocso Act will not be applicable in this case. The impugned
judgment [P. Yuvaprakash v. State, Criminal Appeal No. 400 of
2016 sub nom N. Rasu v. State, 2016 SCC OnLine Mad 32189] set
aside the charge under Section 366IPC against the appellant. The
charges against him, under Section 6 of the Pocso Act as well as
Section 10 of the Prohibition of Child Marriage Act, cannot be
sustained; the findings of the courts below i.e. conviction and
sentences imposed are, therefore, set aside.”
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18. In the instant case, the statement of the prosecutrix under Section 164
Cr.P.C. was recorded on 03.09.2012, i.e. almost immediately after the
registration of FIR and was supposed to be the true and correct version of
what the prosecutrix wanted to say. This statement, however, absolves the
Appellant, as the prosecutrix herself came forward to share the blame
equally instead of blaming the Appellant alone, contrary to what has been
stated by her in her statement to the police Ex.PW-2/A a day before on
02.09.2012. Apparently, the statement made before the Magistrate Ex.PW-
2/B stands on a better footing and can certainly be looked into in order to
ascertain and assess the factual, real and truth of the matter.
19. The unhindered access of the Appellant to the place of the
prosecturix, his secret and undisturbed presence at an unearthly hour of 2
AM in the night, the conduct of the prosecutrix in running away with
him/after him, when the mother of the prosecutrix noticed the presence of
this stranger, coupled with conduct of the prosecutrix thereafter, go on to
show that the narrative in the statement given before the Magistrate
Ex.PW.2/B, is the true, correct and factual position. This, on the face of it,
takes away the sting out of the allegations under Section 457 IPC, atleast.
Section 457 IPC- Lurking house-trespass or house-breaking by night
in order to commit offence punishable with imprisonment.–
Whoever commits lurking house-trespass by night, or house-
breaking by night, in order to the committing of any offence
punishable with imprisonment, shall be punished with
imprisonment of either description for a term which may
extend to five years, and shall also be liable to fine; and, if
the offence intended to be committed is theft, the term of the
imprisonment may be extended to fourteen years.
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20. By the very definition of “criminal trespass”, the access to the
confines of a house etc., should be stealthily made, not with the permission
and consent of the occupants of the premises, that too, with a view to
commit some offence or illegal act. However, all these are amiss in the
instant case though the Appellant was found in the house of the prosecutrix.
He was called by the prosecutrix and he was present in the house with the
consent and permission of the prosecutrix, therefore element of criminality
goes away. In such circumstances holding the Appellant guilty of criminal
trespass is apparently, not in consonance with either the facts and the law.
21. So far as offence of „rape‟ is concerned, the prosecutrix has weaved a
story where she does not, in a way, blame the Appellant for any forceful act,
rather agrees that what all took place between two of them was consensual.
But then, the consent is not free, according to the prosecutrix as at one place,
in her deposition before the court she stated that her consent was obtained by
the Appellant on the pretext of marrying her, and more or less, same is the
position in the statement by the prosecutrix to the police Ex.PW.2/A where
the prosecutrix has blamed the Appellant to have forcefully established
sexual relationship with her. In such circumstances, how come she ran away
with him after the presence of Appellant was detected by her mother. It
appears beyond comprehension and no explanation is forthcoming as to why
she ran away with him if the Appellant had used forced or had cheated her
by assuring or promising marriage, to establish physical relationship with
her.
22. At this stage, the statement of prosecutrix recorded under Section 164
Cr.P.C. Ex.PW-2/B can be looked into, to find out the answer to this, which
lies in the fact that the prosecutrix was a willing party to everything and
apprehending that her family would do something to her, she felt it
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appropriate to run away with the Appellant himself. Incidentally, the version
of the prosecutrix before the Child Welfare Committee (CWC), which was
the first point of contact with some Authority except the police, recorded in
Ex.PW-10/D, which endorse this fact that the Appellant was called by
prosecutrix at her house in the intervening night of 01/02.09.2012 and had
established physical relations with him. This, by implication, amounts to a
consensual sexual relationship between the Appellant and the prosecutrix.
There is another reason why this should be treated as the correct narrative
inasmuch as the CWC had directed the SHO to furnish a report with regard
to the beatings given by the policemen to the prosecutrix. This fact has been
stated by the prosecutrix as has been reflected in her statement recorded
under Section 164 Cr.P.C. (Ex.PW-2/B).
23. The Courts have consistently held that testimony of the
victim/prosecutrix alone is sufficient to hold the assailant guilty provided
that the statement is impeccable, irrefutable and of sterling quality as was
observed in State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384.
24. However, the testimony of the prosecutrix in the instant case, when
read in conjunction with her two other statements, recorded by the police
(Ex.PW-2/A) the one recorded by the Magistrate under Section 164 Cr.P.C.
(Ex.PW-2/B) and are juxtaposed with one another and with the statement
made by her before the Court, then it can be seen that she is not consistent in
her statements. In her substantive statement made before the Court also she
lacks consistency and in the concluding line of her cross-examination and
the two Court questions prior to that serve a severe blow on the credibility of
the prosecutrix. Certainly her testimony, as such, cannot be termed as of
sterling quality, therefore, the aforesaid proposition laid down in Gurmit
Singh‘s case (supra), is not attracted.
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25. In such circumstances, apart from the evidence of the prosecutrix,
Court has to look out for corroboration to assure about the case of the
prosecution / prosecutrix. Reference can be made to the observation in the
judgment titled on Nirmal Premkumar and Anr. vs. State represented by
Inspector of Police, (2024) 20 SCC 293.
26. Corroboration cannot be there in such like offences from any other
independent source or witness, who can be termed as an eye witness. Thus,
the circumstantial evidence together with technical, scientific and forensic
evidence are to be looked into as confirmatory test of the substantive
statement of the prosecutrix.
27. In the instant case not only the substantive statement itself is shaky
and does not inspire confidence but the scientific evidence is also not of any
assistance, to the cause of the prosecution. The FSL result Ex.PW-10/E
reflects that semen could not be detected on any of the exhibits starting from
“la” to “lj” i.e. pubic hair of the accused and his underwear. In such
circumstances, the blood and semen sample of the Appellant was not
subjected to DNA finger print analysis, as reflected in the forensic report
(Ex.PW-10/E).
28. As a result, there is nothing against the Appellant so far as the FSL
result is concerned. Incidentally the MLC of the victim Ex.PW7/B which
practically contains nothing except two things that no injury was noticed by
the Doctor, who examined the prosecutrix on 02.09.2012, and that she was
further referred for gynecological examination.
29. The record could not reflect anything pertaining to the gynecological
department/examination of the prosecutrix. However, document Ex.PW5/A,
that is the Seizure Memo of the Exhibits of the prosecutrix prepared by SI
Usha can be looked into. It is recorded by her that Lady Constable Anupama
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got the prosecutrix medically examined through MLC No. 3921/2012 and
the “Sexual Assault Evidence Collection Kit” was seized under the seal of
GTB hospital together with the sample seal. No record of GTB hospital
could be located or pointed out by any of the contesting sides, which renders
the sexual assault kit and the resultant examination in the FSL questionable
and thus cannot be relied upon or read against the Appellant. In any case
there is nothing against the Appellant either in the forensic result.
30. This brings the statement of the prosecutrix in the center stage. Her
first statement Ex.PW2/A which laid the foundation of the case and was
made basis to register the FIR has certain incriminating overtones against
the Appellant but in her statement made before the Magistrate under oath in
terms of Section 164 Cr.P.C. (Ex.PW-2/B), she has, in a way, absolved the
Appellant. She has not even blamed the Appellant that he had indulged into
sexual intercourse with the prosecutrix under the pretext or promise of
marriage. She rather goes on to say that she wanted to marry the Appellant.
She has stated that it was she who had called him at her place and they had
physical relations and when her mother spotted the Appellant she too ran out
of the house along / after the Appellant. This statement under Section 164
Cr.P.C. can be looked into in view of the observations made in
P.Yuvaprakash‘s case (supra).
31. Reverting back to the substantive statement of the prosecutrix made
before the Court, it can be seen that the prosecutrix was unsure in her mind
as to which direction she wanted to go or what exactly she wanted to tell.
Seemingly, she was torn between two conflicting thoughts, one siding with
the Appellant and the other one with her own family. It renders a statement
unworthy of reliance and in any case in the concluding line of the cross-
examination she has let off the Appellant completely. And for that matter
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demolishes, in the process, the contention raised by the learned APP about
the sexual intercourse prior to 02.09.2012.
32. The relevant portion of the cross-examination, including the Court
questions are reproduced below:-
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33. The version of the prosecutrix recorded at the Child Welfare
Committee (Ex.PW-10/D) in a way reflects that the prosecutrix had
consensual relationship with the Appellant and that she was not taken for
ride in any manner by the Appellant rather she was a willing and consenting
party out of her own volition to what all happened between her and the
Appellant.
34. On 02.09.2012, she was major as per the school records where her
date of birth has been recorded as 27.08.1996. Incidentally, her 10 th class
certificate was also collected and filed by the prosecution though it could not
be taken into consideration either by the Appellant or the prosecution but
then the same being part of the record, therefore, the Appellant, certainly can
rely upon this document notwithstanding the fact that it has not been proved
as such. Thus, the aspect of age of the prosecutrix stands established that she
was not a minor as on 02.09.2012.
35. What emerges on record, in totality, is that the Appellant cannot be
held responsible for committing house trespass as his entry was facilitated
by the prosecutrix as he was there on being called by her and even if he was
not called, still the entry into the house of the prosecutrix cannot be treated
as criminal trespass by any standard.
36. Again the allegations under Section 376 IPC are not corroborated by
medical or forensic evidence. The testimony of the prosecutrix is very shaky
and not worth reliance. The Appellant cannot, therefore, be held responsible
for the offence of rape/the sexual intercourse between two of them, as the
prosecutrix being a consenting party, and competent to consent too. So far
as, the earlier incidents are concerned, there is again no evidence except
what has been stated by the prosecutrix but given the fact that she is not a
reliable witness and being non-committal, sort of neutral or unsure or not
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forthcoming, therefore, even that does not come to the rescue of the
prosecution‟s case. In any case, no charge has been framed with regard to
those previous incidents and therefore, the Appellant was not tried or
punished for the same, therefore, cannot be held responsible in appeal.
37. As a result, the judgment of conviction recorded by the learned Trial
Court cannot be sustained and is accordingly set aside.
38. As an outcome, the Appellant is acquitted of the charges. Bail
Bond(s) stand discharged. Application(s), if any, pending stand disposed of.
39. Copy of the judgment be transmitted to Trial Court and Prison
Authorities, for information and requisite compliance.
VIMAL KUMAR YADAV, J
JULY 24, 2026/bj/hk/tng
Signature Not Verified CRL.A. 1450/2014 Dildar vs. State Page 17 of 17
Signed By:PRIYA
Signing Date:24.07.2026
17:00:27
