Delhi High Court
Akeel Azhar @ Rinku vs State (Nct Of Delhi) on 28 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 22.07.2026
Judgment pronounced on: 28.07.2026
+ CRL.A. 1144/2025 & CRL.M.A. 23761/2025
AKEEL AZHAR @ RINKU .....Appellant
Through: Mr. Amitej Kumar Nagar, Advocate
Versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for State with SI
Kevendra Singh
Mr. Manish Sangwan, Advocate
(DHCLSC) for Victim
+ CRL.A. 1272/2025 & CRL.M.A. 27206/2025
SXX PXXX (MOTHER OF VICTIM) .....Appellant
Through: Ms. Sanjana Gupta, Advocate
(DHCLSC) with Mr. Rakesh Tanwar,
Advocate
Versus
THE STATE GOVT OF NCT DELHI & ANR. .....Respondents
Through: Mr. Utkarsh, APP for State with SI
Kevendra Singh
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
CHANDRASEKHARAN SUDHA, J.
1. In these appeals filed under Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 374(2) of the
Code of Criminal Procedure, 1973 (Cr.P.C.)], accused nos. 1 and 2
(A1 and A2) in Sessions Case No. 2227 of 2018 on the file of the
Additional Sessions Judge (SC-POCSO), East District,
Karkardooma Courts, New Delhi, assail the judgment dated
30.01.2025 and order on sentence dated 14.02.2025 as per which
A1 has been convicted and sentenced for the offences punishable
under Sections 376(2), 323, 506 of the Indian Penal Code, 1860
(the IPC) and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (the PoCSO Act). A2 has been convicted and
sentenced for the offences punishable under Section 6 read with
Section 17 of the PoCSO Act and Section 376(2) read with Section
109 IPC.
2. The prosecution case is that, several times during the
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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three years preceeding 10.08.2018, A1 criminally intimidated PW1
to PW3, three minor girls aged between 02 to 08 years and
repeatedly committed penetrative sexual assault. He threatened to
beat them in case they disclosed the incidents to anyone. A1
voluntarily caused hurt to the victims by beating them and
repeatedly committed penetrative sexual assault on them. A2
abetted and aided A1 in committing the penetrative sexual assault.
Hence, as per the charge sheet/final report, A1 is alleged to have
committed the offences punishable under Sections 376(2), 354 and
323 IPC and Sections 6 and 10 of the POCSO Act. A2 is alleged to
have committed the offences punishable under Sections 376(2)
read with 109 IPC and Sections 6 read with 17 and 21 of the
3. Based on Ext. PW1/B FIS of PW1, crime no. 384/2018,
ShakarPur police station, that is, Ext. A4 FIR,was registered by
PW5, Constable. PW13, Sub-Inspector, conducted investigation
into the crime and on completion of the same, filed the
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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chargesheet/final report alleging the commission of the offences
punishable under the aforementioned Sections.
4. When A1 and A2 were produced before the trial court,
all the copies of the prosecution records were furnished to them as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, as per order dated 10.01.2019, framed a Charge
under Sections 376(2), 506, 323 IPC and Section 6 of the PoCSO
Act against A1 and under Section 6 read with Section 17 of the
PoCSO Act and Section 376(2) read with Section 109 IPC against
A2. The same was read over and explained to A1 and A2, to which
they pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 13 were
examined and Exts. PW1/A-C, PW2/A, PW3/A-C, PW4/A-C,
PW5/A, PW8/P1-P4, PW9/P1-P10, PW10/A-C, PW11/P1,
PW13/B-D andA1-A8 were marked in support of the case.
6. After the close of the prosecution evidence, A1 and A2
were questioned under Section 313(1)(b) Cr.P.C. regarding the
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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incriminating circumstances appearing against them in the
evidence of the prosecution. A1 and A2 denied all those
circumstances and maintained their innocence. A1 submitted that
he has been falsely implicated in the present case due to family
disputes. He has not committed any offence, and the allegations
made against him are false and baseless.
6.1. A2 submitted that she has been falsely implicated in the
present case and has not committed any offence as alleged herein.
7. After questioning A1 and A2 under Section 313(1)(b)
Cr.P.C, compliance of Section 232 Cr.P.C was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C is seen made by the trial court. However, non-compliance
of the said provision does not ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
vs. State of Kerala, 2009 (3)KHC 89 : 2009 SCC OnLine Ker
2888). Here, A1 and A2 have no case that non-compliance of
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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Section 232 Cr.P.C has caused any prejudice to them.
8. On behalf of A1, DW1 was examined. No oral or
documentary evidence was adduced on behalf of A2.
9. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment dated 30.01.2025, convicted A1 for the offences
punishable under Sections 376(2), 323 and 506(1) IPC and Section
6 of the PoCSO Act, and A2 for the offences punishable under
Section 109 read with Section 376(2) IPC and Section 6 read with
Section 17 of the POCSO Act. By the order on sentence dated
14.02.2025, A1 has been sentenced to rigorous imprisonment for a
period of 12 years as well as fine of ₹25,000/- and in default of
payment of fine, to rigorous imprisonment for six months for the
offence punishable under Section 6 of the PoCSO Act; to rigorous
imprisonment for 01 year as well as fine of ₹5,000/- and in default
of payment of fine, to rigorous imprisonment for one month for the
offence punishable under Section 506(1) of the IPC and to rigorous
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SHARMA
Signing Date:28.07.2026
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imprisonment for 06 months as well as fine of ₹2000/- and in
default of payment of fine, to rigorous imprisonment for 15 days
for the offence punishable under Section 323 IPC. A2 has been
sentenced to rigorous imprisonment for 10 years as well as fine of
₹10,000/- and in default of payment of fine, to rigorous
imprisonment for six months for the offence punishable under
Section 17 read with Section 6 of the PoCSO Act. The sentences
have been directed to run concurrently. Aggrieved, A1 and A2
have come up in appeal.
10. It was submitted by the learned counsel appearing for
the appellant/A1 that Ext. A7 FSL report says that no male DNA
was detected, despite the prosecution case as revealed in Ext.
PW1/B FIS/FIR being that A1 had sexually assaulted her on the
morning of the report also. The attention of the Court was drawn to
paragraphs 6 and 7 of the order on sentence dated 14.02.2025,
which has recorded the statement of PW1 to the effect that neither
A1 nor A2 had done anything wrong to her and that she had made
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
the allegations under the pressure of her class teacher. It was also
pointed out that PW3, one of the victims when examined before
the court has not supported the prosecution case. Although PW1
deposed that she had seen A1 sexually assaulting her sisters, that
is, PW2 and PW3, the testimony of PW3 does not corroborate the
said allegation. Therefore, it is prayed that the impugned judgment
of conviction and order on sentence be set aside and the
appellant/A1 be acquitted.
11. The learned counsel appearing for the appellant/A2
quite persuasively argued that the trial court erred in convicting A2
for abetment as contemplated under Section 17 of the PoCSO Act
and Section 109 IPC. It was submitted that in order to sustain a
conviction for abetment, the prosecution must establish intentional
instigation, conspiracy or intentional aid, which has not been
established by the prosecution. Mere knowledge of the act, in the
absence of any active participation or intentional assistance, is
insufficient to attract the liability under Section 17 of the PoCSO
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SHARMA
Signing Date:28.07.2026
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Act and Section 109 IPC. Further, PW1 has given inconsistent
versions in her earlier statements and testimony. In Ext. PW1/B
FIS/FIR, PW1 stated that the incidents had taken place while she
was studying in second standard, whereas, in her testimony, she
deposed that the incidents continued during second, third and
fourth standards. Therefore, the prosecution has failed to establish
its case beyond reasonable doubt, and the appellant/A2 is,
therefore, entitled to an acquittal. In support of the submissions,
reliance was placed on the dictum of the High Court of Judicature
at Madras dated 21.11.2023 in State Rep. By the Inspector of
Police vs. XXX, R.T. No.2 of 2022 and Crl.A. Nos.427 and 392
of 2023.
12. Per contra, the learned Additional Public Prosecutor
submitted that PW1 and PW2, the minor victims, have been
consistent in their statements and testimony, which is further
corroborated by the medical evidence. It was pointed out that Ext.
PW1/A MLC of PW1 records that her hymen was torn, there was a
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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bite mark on her abdomen and tenderness was present. Further, the
absence of detection of male DNA in Ext. A7 FSL report cannot
be read against the ocular evidence of the victims. The biological
samples were collected after a lapse of time and, therefore, the
possibility of degradation or loss of DNA material, as also
mentioned in the report itself, cannot be ruled out. It was further
submitted that the expression “offence”, as defined under Section
2(n) of the Code of Criminal Procedure, 1973, means any act or
omission made punishable by any law for the time being in force.
Once the law recognises an omission as capable of constituting an
offence, the deliberate failure of A2 to discharge her legal duty to
protect her minor daughters, despite repeated disclosures regarding
the acts of A1, is capable of attracting the provisions relating to
abetment by illegal omission under Section 16 of the POCSO Act.
Therefore, the prosecution had proved the guilt of the appellants
beyond reasonable doubt and that there is no infirmity in the
impugned judgment calling for an interference by this court.
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
13. It was submitted by the learned counsel appearing for
the victim/PW1 that PW1 had made the allegations under the
influence and tutoring of her teacher, to whom she had initially
reported the incident. It was submitted that PW1 now supports the
case of the appellants/A1 and A2 and has stated that they had not
committed any offence against her. It was, therefore, prayed that
the impugned judgment of conviction and order on sentence be set
aside and the appellants be acquitted.
14. Heard both sides and perused the materials on record.
15. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the appellants/A1 and A2 by the trial court are sustainable
or not.
16. I shall briefly refer to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
PW1/B FIS/FIR of PW1 recorded in Hindi on 10.08.2018,
translated reads thus: “I reside along with my three sisters, mother,
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SHARMA
Signing Date:28.07.2026
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and father. My bua’s son (A1) also lives in our house, whom we
address as bhaiya. Ever since I was studying in the second grade,
bhaiya (A1), who lives with us, would take off my pajamas and lie
on top of me, touching my private part with his hand (हाथ मे री शू-शू
पर लगाते थे). Whenever I tried to tell my mother (A2) about this,
she would dismiss my concerns by saying that he was my brother
and that I should not say such things (ऐसे नहीं कहते वो भैया है ).
Then one day, bhaiya (A1) took off his clothes as well as my
clothes, lay on top of me, and inserted his private part into mine
(मे रे ऊपर लेट गए और अपनी सु -सु मेरी सु-सु मे डाल िदया). I cried a
lot. My mother (A2) had gone to the toilet at that time. When she
returned, I told her about it, but she dismissed it by saying that I
should not say such things about bhaiya (A1) and that I was lying.
Bhaiya (A1) has done this to me four times, and he does the same
with my mother as well. Today, when my father left at 05:00 a.m.
and my mother went to the toilet, bhaiya (A1) again inserted his
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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private part into mine, after which I left for school. I told this
incident to my teacher, Ayesha Khan Madam. Bhaiya (A1)
behaves inappropriately with my sister as well.”
17. In Ext. PW1/C 164 statement of PW1 recorded on
14.08.2018, she has stated thus: Bhaiya (A1) behaves
inappropriately with us. He removes his pants and touches us with
his hand. He lies on top of us. He puts his private part into our
private part and moves back and forth (अपना सु सु हमारे ऊपर डाल
कर आगे पीछे होते है ). He tells us not to tell anyone. She told her
mother (A2), but her mother (A2) did not say anything and said
that it was okay. Bhaiya (A1) also beats us. He beats us with a
stick. We told Ma’am who brought us there. Bhaiya (A1) said that
if we told anyone about the incident, he would beat us severely. He
also kisses us. He did the same to her sister also. He forces us by
beating (मारकर करवाता है ).
18. In Ext. PW2/A 164 statement of PW2 recorded on
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14.08.2018, she has stated thus:- Bhaiya (A1) talks of bad things
(भैया न गं दी बात करते थे ). He touches us and puts his hand where
we urinate (हाथ डालते थे । यहाँ पर सु सु करते है न, वहाँ डालते थे ।). He
used to do this to all three sisters. He also used to beat all three of
us. He used to put his private part into her mouth, as well as into
her sister’s (PW1) mouth. Fufu had sent him there. He is not our
biological brother. He sleeps at fufu’s house.
19. In Ext. PW3/A 164 statement of PW3 recorded on
14.08.2018, she has stated thus:- When Rinku bhaiya (A1) bathes
her, the former removes her underwear and clothes. After that, he
touches her private parts with his hand.
20. PW1 when examined before the trial court, stood by her
version in the FIS/FIR and the 164 statement. She deposed that
Rinku (A1) is the son of her fufu. She used to call him bhaiya.
Rinku (A1) used to reside in their house and was working as a
computer mechanic. On being asked as to what Rinku (A1) had
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SHARMA
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done to her, she answered that he raped her. When she was asked
what she meant by rape, answered that – “Rinku (A1) used to
remove my pajami and used to insert the finger inside my vagina.”
The trial court has noted thus – “victim demonstrated by putting
finger towards her utaras [sic] portion”. PW1 further deposed that
Rinku (A1) also inserted his private part (susu wali jagah) inside
her private part (susu wali jaga) and committed rape (wo apna
neeche wala part mere under daak kar aage peeche karata thaa).
Rinku (A1) also committed the aforesaid acts with her younger
sisters also. Rinku (A1) did the aforesaid acts when she was in
second, third and fourth grade. She did not disclose the act to
anyone. One day, after everyone had eaten and were asleep, she
heard a noise which woke her up. Her younger sister also woke up.
She noticed that Rinku (A1) was having sexual intercourse with
her mother. On noticing her, A1 went under the bed. She
questioned the act of the accused. Rinku (A1) then put a towel
around his lower portion as he was naked and stated that he pays
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SHARMA
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money for it and that he does the same with her as well (Main
paise de kar karta hoon, main tere saath bhi kartaa hoon). Despite
hearing A1, her mother (A2) did not respond or confront him.
Rather, her mother (A2) told her that the former raises them using
the money given by A1 (Inhi paison se to main tumhe paalti
hoon). Rinku (A1) threatened her with a belt and told her that he
would beat her if she disclosed the incident to anyone. Thereafter,
they all went to sleep. In the morning when they woke up, her
mother (A2) told her that it was okay and that people do such
things (Koi nahi aise karte hain). Then life went on.
20.1. One day at school, when she was in the fifth standard,
her class teacher (PW6) was teaching them about good and bad
touches and advising that if any wrong act is committed against
children, they should report the matter to their parents and near
ones. In the said class, her cousin sister (the daughter of her bua)
who is also her classmate, asked her to disclose the sexual assault
committed by Rinku (A1) to the teacher. After the awareness
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SHARMA
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program, she told her class teacher (PW6) that she wanted to
discuss certain facts with her. Thereafter, while the class was going
on, her teacher called her and asked what she wanted to disclose.
She then disclosed the entire incident to her teacher. Her teacher
told her that she would get the perpetrator punished and also asked
her not to tell anyone that she had disclosed the incident to her.
One day, while she was in class, her class teacher took her to the
Principal’s room, where police officers were already present. She
narrated the entire incident to the police. Thereafter, the police
took her to the hospital, where her medical examination was
conducted. The police also recorded her statement. From the
hospital, she was taken to Sanskar Ashram.
20.2. The prosecutor sought permission of the trial court to
put leading questions to PW1. The same was allowed. On being
asked if she knew Alina Khan, PW1 answered that when she had
told her class teacher about the incident, her class teacher called
Alina Khan Madam, who also made inquiries with her.
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SHARMA
Signing Date:28.07.2026
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20.3. PW1 in her cross-examination, deposed that Rinku
(A1) used to give his salary to her mother (A2). She denied the
suggestion that her grandmother and her mother (A2) used to
quarrel often. Once, she had told her buaji about the assault by
Rinku (A1), but her buaji never confronted Rinku (A1) about it.
PW1 denied frequent quarrels between her parents. She had once
noticed a quarrel between them. She had not told her father about
the incident. The quarrel between her parents took place when the
police had been called to the school (Jab bhaiya karte they tab
mere saath tab jhagada hua thaa). She denied the suggestion that
she complained against Rinku (A1) as tutored by her father and
dadi. PW1 admitted that, on one occasion, a quarrel had taken
place between Rinku (A1), her mother (A2), and her father over
money, as her mother (A2) had kept as savings the money given to
her by Rinku (A1), while she gave a portion of the money received
from her father to Rinku (A1). PW1 further deposed that her father
is “slightly mentally weak”. According to PW1, she had witnessed
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Rinku (A1) sexually assaulting her younger sisters (PW2 and
PW3). She denied the suggestion that as her father did not want to
return Rinku’s (A1) salary, the false implication has been made.
PW1 admitted that neither of her sisters had complained to their
mother (A2) regarding the sexual assault by A1. When she had
informed her mother (A2) about the sexual assault committed by
A1, her youngest sister (PW3) was asleep, but her younger sister
(PW2) was awake. Her buaji showed no reaction and kept mum
when the assault was disclosed to her. She told her buaji’s
daughter, who was her classmate, about Rinku’s (A1) actions after
the first incident of sexual assault. Her cousin sister then disclosed
Rinku’s actions to her dadi.
21. PW2 when examined before the trial court, deposed
that AkilAzhar @ Rinku (A1), son of her phuphu used to do bad
things to her. On being asked what bad things he had done, she
answered that A1 used to touch her inappropriately / put his hands
on her. The trial court recorded its observation thus – “At this
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stage, witness (PW2) pointed towards her lower private part in
order to show where the accused (A1) used to put his hand”.
Rinku (A1) used to remove her clothes, and then touch her. Rinku
(A1) used to hit her on the head with a pan used for making rotis
and threatened to break her head. Rinku (A1) used to do the same
acts on both her sisters as well as her bua’s daughter. Rinku (A1)
used to put his private part into their mouths. Rinku (A1) did the
aforesaid acts several times during night while they were asleep.
When she and her sister initially informed their dadi and mother
(A2) about the assault, her dadi dismissed it as a joke while her
mother (A2) remained silent and took no action. They disclosed
the incident to a teacher in their school. The teacher called the
police, after which a female police officer took them for medical
examination. Thereafter, they were taken to ashram, where they
have been residing since.
21.1. PW2 in her cross-examination, deposed that Rinku
(A1) used to give ₹10/- to ₹20/- to her younger sister (PW3).
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Rinku (A1) also used to give money to her mother (A2), while her
father saved money in a piggy bank rather than handing it directly
to her mother. She denied frequent quarrels between her father and
Rinku (A1). Her mother met their school expenses. PW2 denied
having complained to her teacher as instructed by someone else
and clarified that they had complained voluntarily, without being
instructed by anyone. PW2 admitted that her mother (A2) loved
her.
22. PW3 deposed that Rinku bhaiya (A1) did not do
anything inappropriate to her or touch her private parts. She
admitted that she used to bathe with Rinku bhaiya (A1) and that
the latter lived in their house. The police took Rinku bhaiya (A1)
away. She denied that she was taken to the hospital by the police.
While she admitted appearing before a judge, she denied the judge
asking her as to what had happened or having told the judge about
the incident. She denied disclosing the incident to her mother (A2).
She denied having been instructed by her dadi not to say anything
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against Rinku bhaiya (A1).
23. PW10, then Senior Resident, Gynaecology Department,
LBS Hospital, deposed that on 10.08.2018, she conducted medical
examination of the victims (PW1 to PW3). On obtaining consent,
an internal examination of PW1 was conducted which revealed the
tear on the hymen was old. There was slight tenderness. She had
examined the other victims (PW2 and PW3) also. But their bua
refused internal medical examination. On local examination of the
genitals of both the victims (PW2 and PW3), the hymen was found
intact.
23.1. PW10 in her cross-examination, admitted that hymen
can be torn due to reasons other than sexual assault. PW10
admitted that tenderness could be caused by an injury but no
physical injury was visible on local examination. She denied the
suggestion that she had prepared the MLCs at the instance of the
Investigating Officer (PW9).
24. I will also refer to the testimony of the defence witness
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examined on behalf of A1. DW1 deposed that Akeel Azhar (A1),
his cousin brother, was residing with his family at the time of the
incident. DW1 in his cross-examination, denied the suggestion that
A1 was residing with co-accused (A2). He admitted that he
possessed no documentary proof to establish his relationship with
A1 or proof that A1 had ever resided with him.
25. A1 stands convicted for the offences punishable under
Sections 376(2), 323 and 506(1) IPC and Section 6 of the POCSO
Act. The principal question that arises for consideration is whether
the evidence adduced by the prosecution establishes these offences
against A1 beyond reasonable doubt.
26. The prosecution case substantially rests upon the
testimony of PW1 and PW2 as well as the medical evidence.
Section164 statements of PW1, PW2 and PW3 are substantially
consistent and corroborate each other on the material particulars of
the prosecution case, particularly with regard to the repeated acts
of penetrative sexual assault committed by A1, criminal
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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intimidation and causing hurt to them. PW1 and PW2 entered the
box and reiterated all the material particulars and the allegations
made in their Section 164 Cr.P.C. statements. But, PW3, the
youngest of the sisters, did not support the prosecution case during
trial. However, this fact does not dilute the evidentiary value of the
testimony of PW1 and PW2. The absence of corroboration from
PW3 also does not affect the credibility of PW1 and PW2
regarding the offences committed against them or the incidents
witnessed by PW1. Further, it is settled law that the sole testimony
of a victim can be relied upon to decide a case of sexual assault,
provided it is clear, trustworthy and reliable. As held in Ganesan
v. State, (2020) 10 SCC 573 and State (NCT of Delhi) v. Pankaj
Chaudhary, (2019) 11 SCC 575, a conviction can be sustained on
the sole testimony of the prosecutrix if it inspires confidence, and
there is no rule of law or practice that the evidence of the
prosecutrix cannot be relied upon without corroboration. The
testimony of PW1 and PW2 is clear, cogent and corroborates each
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
other. I, therefore, find no reason to reject or discard the testimony
of PW1 and PW2.
27. The inconsistencies highlighted by the learned counsel
for A1, namely, whether A1 used to sleep in the house of PW1 or
at the house of the bua, and whether the incident occurred when
PW1 was in second grade or whether it continued for three years
from the second standard till fourth standard, are not such that
would strike at the root of the prosecution case or that would affect
the core allegation of aggravated penetrative sexual assault. These
discrepancies are natural, considering that the incidents had
occurred when PW1 to PW3 were between 5 and 10 years of age
and the testimony was recorded after almost an year from the date
of registration of the FIR. It would be unrealistic to expect a child
witness to recollect every date, the sequence and details with
mathematical precision after a lapse of time. Moreover, in the
FIS/FIR, PW1 has stated that since the time she was in the second
standard, the accused had been assaulting her (जब म दू सरी ास म
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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पढ़ती थी तो तब से जो भैया घर म रहते ह मेरी पाजामी उतारकर अपने
आप मे रे ऊपर ले ट जाते थे …….). So, the argument advanced by the
learned counsel for A2, that there is inconsistency between the
versions of PW1 in the FIS/FIR and in the box is incorrect. On the
other hand, the case of PW1 is that the accused has been sexually
assaulting her from the time she was in the second standard.
28. Ext. PW1/A MLC of PW1 also supports the
prosecution case. On examination, no fresh injury was noticed
over the external genitalia. It is true that the tear in the hymen was
found to be old. But tenderness was seen. This supports the version
of PW1 that on the date of reporting also she had been sexually
assaulted. It is true that PW10, the doctor in the cross-examination
admitted to a suggestion put on behalf of the defence that hymen
can be torn for reasons other than sexual assault. Suggestions made
to the doctor and admissions made thereon are not proof of a fact
and based on that admission, the court cannot arrive at a
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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conclusion. Over dependence on such opinion evidence, even if
the witness is an expert in the field, to checkmate the direct
testimony given by an eyewitness is not a safe modus adoptable in
criminal cases. It has now become axiomatic that medical evidence
can be used to repel the testimony of eyewitnesses only if it is so
conclusive as to rule out even the possibility of the eyewitness’s
version to be true. A doctor usually confronted with such questions
regarding different possibilities or probabilities of causing those
injuries or post-mortem features which he noticed in the medical
report may express his views one way or the other depending upon
the manner the question was asked. But the answers given by the
witness to such questions need not become the last word on such
possibilities. After all he gives only his opinion regarding such
questions. But to discard the testimony of an eyewitness simply on
the strength of such opinion expressed by the medical witness is
not conducive to the administration of criminal justice. Similar
view has also been expressed in Mange v. State of Haryana
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
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(1979) 4 SCC 349; State of U.P. v. Krishna Gopal, AIR 1988
SC 2154 ; Ram Dev v. State of U.P. (1995) Supp. (1) SCC 547;
State of U.P. v. Harban Sahai, (1998 6 SCC 50 and Ramanand
Yadav v. Prabhu Nath Jha (2003) 12 SCC 606 and Ram
Swarup vs. State of Rajasthan, AIR 2008 SC 1747.
29. It was submitted by the learned counsel for the
appellant/A1 that the absence of detection of male DNA on the
clothes of PW1 as recorded in Ext. A7 FSL report, despite the
prosecution allegation that PW1 had been subjected to penetrative
sexual assault by A1 on the very same morning, is inconsistent
with the prosecution case and creates reasonable doubt. The non-
detection of male DNA by itself does not demolish the prosecution
case. As pointed by the learned APP, possibility of degradation or
loss of biological material as noted in the report, cannot be ruled
out.
29.1. Further, the medical and forensic evidence admissible
under Section 45 of the Indian Evidence Act, 1872 can only
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
corroborate the testimony of the witness. The purpose of an expert
opinion is primarily to assist the court in arriving at a final
conclusion. Such report is not binding upon the court. The court is
expected to analyse the report, read it in conjunction with the other
evidence on record and then form its final opinion as to whether
such report is worthy of reliance or not. The assistance and value
of expert opinion is indisputable, but there can be reports which
are, ex facie, incorrect or deliberately so distorted as to render the
entire prosecution case unbelievable. But if the eyewitnesses and
other prosecution evidence are trustworthy, have credence and are
consistent with the eye-version given by the eyewitnesses, the
court will be well within its jurisdiction to discard the expert
opinion. An expert report, duly proved, has its evidentiary value
but such appreciation has to be within the limitations prescribed
and with careful examination by the court. A complete
contradiction or inconsistency between the medical evidence and
the ocular evidence on the one hand and the statement of the
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
prosecution witnesses between themselves on the other, may result
in seriously denting the case of the prosecution in its entirety but
not otherwise (See Dayal Singh v. State of Uttaranchal, (2012) 8
SCC 263).
30. I have also gone through paragraphs 6 and 7 of the
order on sentence dated 14.02.2025 wherein PW1/victim is stated
to have expressed that she had made the allegations under the
influence of her class teacher. During the course of oral arguments,
the learned counsel appearing for the victim/PW1 submitted that
the counsellor had tutored the victim/PW1 to speak against her
mother (A2) and brother (A1).
31. The class teacher of PW1 was examined as PW6. PW6
deposed that in August 2018, an MCD counsellor visited the
school to conduct a session, during which PW1 disclosed that she
was being sexually harassed at home by a relative. The counsellor
subsequently informed her department regarding the harassment.
On 10.08.2018, the police officers visited the school and recorded
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
the statements of the victim (PW1) and her two younger sisters
(PW2 and PW3), who were studying in the third class and nursery
respectively. She had accompanied the victims and the police to
the LBS Hospital, where the medical examinations were conducted
in the presence of the children’s dadi. PW6 in her cross-
examination admitted that the victims (PW1 to PW3) had not
disclosed anything to her prior to the counselling session and that
the session had not been conducted to investigate sexual
harassment among students.
32. A careful perusal of the testimony of PW6 shows that
no case of tutoring PW1 to PW3 was ever put to her during her
examination. Not even a suggestion was put to her on behalf of
either A1 or A2 that she had tutored, influenced or prompted the
victims to falsely implicate A2, their mother, or A1. On the
contrary, her testimony indicates that PW1, the eldest child among
the three victims, disclosed the incident after attending the
counselling/awareness sessions. This is not an unnatural
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
circumstance, considering that the victims were of tender age and
may not have fully understood the nature of the acts committed
upon them or that such acts constituted offences. This is especially
so in the case on hand because PW1 and PW2 despite informing
A2, who is none other than their own mother, as well as their dadi
of the sexual assaults, the latter dismissed the complaints of the
young girls as a joke. Infact, according to PW1, her mother (A2)
responded by saying that it was okay and that people do such
things. PW1, a girl of tender age at the time of the incident seemed
to have had the misfortune of seeing the intimate scenes between
her mother (A2) and A1, the person who abused her. The girls
never realised that they were being abused by A1 until PW1
attended the awareness classes. They must have thought that the
acts were normal when their own mother responded by saying –
“Koi nahi aise karte hain”. The contention that the victims were
tutored, having never been put to PW6 during trial, appears to be a
clear afterthought. Such a case is not put forward even when A1
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
and A2 were questioned under Section 313(1)(b) Cr.P.C. Further, asubsequent retraction at the stage of sentencing, unsupported by
any materials on record, cannot demolish the substantive evidence
recorded during trial. The correctness of the conviction has to be
examined on the basis of the evidence or materials adduced during
trial. Accepting the statement of PW1 as seen recorded in
paragraph 6 of the order on sentence, would amount to making a
mockery of the criminal justice system, which cannot be allowed
at any cost. The trial court has rightly rejected the same. I refrain
from taking or recommending any action against PW1 in the light
of her young age. A2 is none other than her mother. Her father is
no more. According to PW1, it is her grandmother and bua who
are taking care of her as well as her sisters. Therefore, one can
certainly understand the pressure PW1 must have been put to by
the family members to retract her earlier statement.
33. Further, the testimony of DW1 does not advance the
defence case in any material particular. At best, it seeks to
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
establish that A1 was residing with DW1 and that he was
apprehended from the factory instead of the place alleged by the
prosecution. The place of arrest is not a fact in issue nor does it
have any bearing on whether the offences alleged against A1 were
committed. Even assuming his version regarding the place of arrest
to be correct, it does not affect the prosecution evidence
concerning the commission of the offences. Consequently, the
evidence of DW1 does not create any reasonable doubt in the
prosecution case and is of no material assistance to the defence.
Accordingly, the conviction of A1 for the offences punishable
under Sections 376(2), 323 and 506(1) IPC and Section 6 of the
POCSO Act warrants no interference.
34. Coming to the conviction of A2 under Section 6 read
with Section 17 of the PoCSO Act and Section 376(2) read with
Section 109 IPC. The primary argument raised by the learned
counsel for the appellant/A2 is that mere knowledge of the
commission of an offence would not attract either Section 17 of
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
the POCSO Act or Section 109 IPC and that there must be
evidence of intentional aid, instigation or active facilitation.
35. Section 16 of the POCSO Act which defines abetment
says that a person abets an offence if he or she (i) instigates any
person to commit the offence; (ii) engages in a conspiracy for the
commission of the offence, followed by an act or illegal omission
in pursuance thereof; or (iii) intentionally aids, by any act or illegal
omission, the commission of the offence. Explanation II to Section
16 further clarifies that a person who, either prior to or at the time
of the commission of the act, does anything in order to facilitate
the commission of that act, and thereby facilitates its commission,
is said to aid the doing of that act. The prosecution seeks to bring
the conduct of A2 within the ambit of clause thirdly of Section 16,
namely, intentional aid by illegal omission. According to the
learned counsel for A2, the prosecution in order to succeed under
clause (iii) of Section 16 of the PoCSO Act must prove that A2,
the mother, had intentionally aided the commission of the offence
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
by A1, which has not been done in this case. Reliance has been
placed on the dictum in State v. XXX (supra) in support of the
argument.
36. In the aforesaid case, the accused persons were the
father (A1) and mother (A2) of the victim. The prosecution case
was that on several occasions A1 had committed penetrative
sexual assault on his minor daughter ever since she was 7 years
old. When the victim informed the assault to her mother (A2), the
latter did not care to take any action. Due to repeated penetrative
sexual assault, the victim child became pregnant. The victim
informed her teacher about the incidents and thereafter, the law
was set into motion. The trial court convicted and sentenced A1
under Section 6 of the PoCSO Act, Section 75 of the Juvenile
Justice (Care and Protection of Children) Act, whereas A2 was
convicted and sentenced under Section 6 read with Sections 17, 21
of the PoCSO Act and Section 75 of the JJ Act.
36.1. The judgment of conviction and sentence was
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SHARMA
Signing Date:28.07.2026
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challenged before the High Court. Upon reappreciation of the
evidence, the High Court affirmed the conviction of A1 for the
offences punishable under the aforementioned Sections. However,
insofar as A2 was concerned, the High Court observed that the
evidence on record did not show that A2 had any intention to aid
A1 in committing the sexual offences. Infact, it was found that A2
had protested at every stage, and A1 had abused and beaten A2,
besides intimidating her with dire consequences. Therefore, it was
held that her knowledge of the illegal acts and her omission to
prevent it or complain about it would not amount to “intentional
aiding”. It was thus held that the prosecution had failed to establish
the ingredients of abetment as contemplated Section 17 of the
PoCSO Act. Nevertheless, the High Court found that A2 had failed
to report the commission of the offence despite being aware of it
and had exposed the child to mental and physical suffering.
Accordingly, her conviction under Section 21(1) of the POCSO
Act and Section 75 of the JJ Act was upheld.
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
37. The present case stands on an entirely different footing.
A2 is not a stranger, acquaintance or any family member, but the
mother of the victims who had the parental and legal duty to
protect her children. According to PW1, the repeated acts of
penetrative sexual assault were committed by A1 while he was
residing in their house. PW1 deposed that she had informed her
mother (A2), about the acts committed by A1. Instead of
protecting her minor daughters or taking any preventive or
remedial steps, A2 dismissed the complaints, told PW1 not to
make such allegations against A1 and continued permitting A1 to
continue residing in the house, thus exposing the minor children to
further abuse. PW1 has further deposed that A2 justified the
conduct of A1 and did not intervene despite being repeatedly
informed. The continued omission of A2 cannot be viewed as mere
passive knowledge but would certainly come within the expression
“intentionally aids by illegal omission” coming in clause (iii) of
Section 16 of the PoCSO Act.
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
38. In the light of the aforesaid discussion, the findings of
guilt recorded by the trial Court for the offences punishable under
Sections 376(2), 323, 506 IPC and Section 6 of the PoCSO Act
against A1 and Section 6 read with Section 17 of the PoCSO Act
and Section 376(2) read with Section 109 IPC against A2, are
proved beyond reasonable doubt and suffer from no infirmity
warranting an interference by this Court.
39. The appeals, sans merit, are dismissed.
40. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 28, 2026
rs/p’ma
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Signed By:RAMAN
SHARMA
Signing Date:28.07.2026
14:22:05
