Delhi High Court
Parveen Kumar vs State (Nct Of Delhi) on 8 May, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.05.2026
Judgment pronounced on: 08.05.2026
+ CRL.A. 607/2023 & CRL.M.(BAIL) 588/2026
PARVEEN KUMAR .....Appellant
Through: Mr. Shivek Trehan, Advocate
(DHCLSC) with Ms. Manika Pandey,
Advocate.
versus
STATE (GNCT OF DELHI) & ANR .....Respondent
Through: Mr. Utkarsh, APP for the State.
Mr. Saurabh Kansal, Mr. Raghav Vij,
Mr. Suraj K. Jha and Mr. Pratham
Malik, Advocates for the complainant.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973, (the Cr.PC) read with Section 383
Cr.PC, the sole accused in SC No. 23/2018 on the file of the
Additional Sessions Judge-07, (PoCSO), West District, Tis Hazari
Courts, Delhi, assails the judgment dated 18.05.2023 and the order
CRL.A. 607/2023 Page 1 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
on sentence dated 27.05.2023 as per which he has been convicted
and sentenced for the offences punishable under Sections 363, 342,
324, 377, and 506(Il) of the Indian Penal Code, 1860 (the IPC) and
Section 6 of the Protection of Children from Sexual Offences Act,
2012 (the PoCSO Act) .
2. The prosecution case is that in the intervening night of
04.02.2018-05.02.2018 between 12 midnight and 12:30 A.M, at
Vishal Property, D-5/193, Kanwar Singh Nagar, Delhi, the
accused, kidnapped PW1, a minor boy, aged 16 years, wrongfully
confined him at Khasra No. 19/10, Kamruddin Nagar road,
Kanwar Singh Nagar, Delhi; voluntarily caused hurt to PW1 by
hitting his legs with a hammer and committed carnal intercourse
against the order of nature. The accused also threatened PW1 with
dire consequences in case he revealed the incident to others.
Hence, as per the charge-sheet/final report dated 12.04.2018, the
accused was alleged to have committed the offences punishable
CRL.A. 607/2023 Page 2 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
under Sections 323, 342, 363, 377, 506 IPC and Section 4 of the
PoCSO Act.
3. On the basis of Exhibit PW1/A FIS/FIR of PW1, given
on 05.02.2018, crime no. 67/2018, Nihal Vihar Police Station, i.e.,
Exhibit PA-02 FIR dated 05.02.2018 alleging the commission of
offences punishable under Sections 323, 342, 363, 377, 506 IPC
and Section 4 of the PoCSO Act, was registered by PW4, Head
Constable. PW8 was entrusted with the investigation of the case on
07.03.2018, who conducted investigation into the crime and on
completion of the same, filed the charge-sheet/final report dated
12.04.2018 alleging commission of the offences punishable under
the aforementioned sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him, as
contemplated under Section 207 Cr.PC. After hearing both sides,
the trial court, vide order dated 04.06.2018, framed a charge under
Section 6 of the PoCSO Act and Sections 363, 342, 323, 377 and
CRL.A. 607/2023 Page 3 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
506 IPC, which was read over and explained to the accused to
which he pleaded not guilty. Further, vide order dated 10.05.2023,
the charge under Section 323 IPC was altered to Section 324 IPC
by invoking Section 216 Cr.PC.
5. On behalf of the prosecution, PWs. 1 to 9 were
examined and Exhibits PA-1 to PA-5, PW1/A-D, P1, P2,
PW2/DX1, PW3/DX1- DX2, PW4/X, PW4/A-C, PW5/A, PW6/A-
B, PW7/A-B and PW8/A-C were marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.PC regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He claimed that he had been falsely
implicated. He further stated that he was running a shop for repair
of gas chulhas, utensils, and their components. PW1 came to his
shop for repair of his gas chulha, fry pan, and cooker. He
demanded ₹500/- as repair charges. After some negotiation with
CRL.A. 607/2023 Page 4 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
PW1, the charges was settled at ₹450/-. On the following day,
when PW1 came to his shop to take back the articles repaired
instead of paying the agreed amount of ₹450/-, the former paid
only ₹200/-. When he demanded the remaining amount from PW1,
the latter threatened him by saying that he would have to face
consequences. Thereafter, some police officials came to his shop,
took ₹4,500/- from his pocket, and a false case was registered
against him at the instance of PW1 and his family members. He
has not sexually assaulted/abused PW1.
7. After questioning the accused under Section. 313(1)(b)
Cr.PC, compliance of Section 232 Cr.PC was mandatory. In the
case on hand, no hearing as contemplated under Section 232 Cr.PC
is seen done 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
CRL.A. 607/2023 Page 5 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
2888). Here, the accused has no case that non-compliance of
Section 232 Cr.PC has caused any prejudice to him.
8. No oral or documentary evidence were adduced on
behalf of the defence.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 18.05.2023, held the accused
guilty of the offences punishable under Sections 363, 342, 324,
377, 506(Il) IPC and Section 6 of the PoCSO Act. Vide order on
sentence dated 27.05.2023, the accused has been sentenced to
undergo rigorous imprisonment for a period of 15 years, along
with fine of ₹6,000/-, and in default of payment of fine, to simple
imprisonment for a period of 1 month for the offence punishable
under Section 6 of the PoCSO Act; to rigorous imprisonment for a
period of 2 years, along with fine of ₹1,000/-, and in default of
payment of fine, to simple imprisonment for a period of 1 month
for the offence punishable under Section 363 IPC; to rigorous
CRL.A. 607/2023 Page 6 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
imprisonment for a period of 6 months, along with fine of ₹1,000/,
and in default of payment of fine, to simple imprisonment for a
period of 15 days for the offence punishable under Section 342
IPC; to rigorous imprisonment for a period of 2 years, along with
fine of ₹1,000/-, and in default of payment of fine, to simple
imprisonment for a period of 15 days for the offence punishable
under Section 324 IPC; and to rigorous imprisonment for a period
of 3 years, along with fine of ₹1,000/-, and in default of payment
of fine, to simple imprisonment for a period of 1 month for the
offence punishable under Section 506 (II) IPC. The sentences have
been directed to run concurrently. Aggrieved, the accused has
come up in appeal.
10. It was submitted by the learned counsel for the
appellant/accused that the entire prosecution case solely rests on
the testimony of PW1, which is riddled with inconsistencies. It was
contended that while PW1, in his Section 161 Cr.PC statement
alleged both oral and anal penetration, in Section 164 Cr.PC
CRL.A. 607/2023 Page 7 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
statement, the allegation of anal penetration finds no mention.
Further, PW1 made improvements in his testimony before the trial
court, where he set up new allegations including assault with screw
driver, blade and other objects which were not mentioned in his
earlier versions. Such embellishments discredit the testimony of
PW1 and indicate higher possibilities of tutoring, goes the
argument. It was also submitted that certain portion of PW1’s
testimony are hearsay in nature, particularly regarding the
condition in which he reached home as the mother of PW1, who is
the source of such information, was not examined.
10.1. There is no cogent evidence to establish the offence of
wrongful confinement or criminal intimidation. It was urged that
the essential elements of penetrative sexual assault has not been
proved beyond reasonable doubt by the prosecution and that the
nature of injuries are simple in nature and they do not support the
version set up by the prosecution regarding the brutal assault or
forcible sexual act. Emphasis was laid on Exhibit PW5/A MLC to
CRL.A. 607/2023 Page 8 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
augment the contention that the findings in MLC are suggestive
and not determinative.
10.2. It was next contended that the trial court erred by
relying on PW7/A FSL report as the prosecution has failed to
establish an unbroken chain of custody of the seized samples and
reliable link evidence connecting the samples to the accused.
Discrepancies also exist between the seizure memos and the road
certificate regarding the articles sent. These discrepancies cast
serious doubt in the prosecution case, goes the argument.
10.3. It was lastly submitted that despite the alleged incident
occurring in a populated locality, no independent witness have
been examined. The testimony of PW2 and other witnesses does
not inspire confidence. The prosecution failed to examine material
witnesses, including the mother of PW1, whose testimony,
according to the learned counsel, is crucial. Therefore, in such
circumstances, the reliance on the sole testimony of the child
witness is unsafe.
CRL.A. 607/2023 Page 9 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
11. Per contra, the learned Additional Public Prosecutor
supported the impugned judgment and order on sentence and
submitted that it does not suffer from any illegality or infirmity
calling for an interference by this Court. However, the learned
prosecutor pointed out that at the relevant point in time, the
offence was punishable with minimum 10 years which could
extend to life or if it is for a term, not exceeding 14 years.
However, the trial court has erred in sentencing the
appellant/accused to rigorous imprisonment for a period of 15
years.
12. Heard both sides and perused the records.
13. The principal issue that falls for consideration in the
present appeal are:
i. Whether there is any infirmity in the impugned
judgement calling for an interference by this court;
ii. Whether the order on sentence, in respect of the
conviction under Section 6 of the POCSO Act, is
CRL.A. 607/2023 Page 10 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
sustainable in law, particularly in light of the statutorysentencing framework applicable at the time of
commission of the offence, which prescribed a
minimum sentence of ten years extendable to life
imprisonment, and the imposition of a sentence of
fifteen years’ rigorous imprisonment by the trial court is
in consonance with the settled legal position or calls for
appropriate modification.
14. I shall make a brief reference to the oral and
documentary evidence relied on by the prosecution in support of
the case. Exhibit PW1/A, the FIS/FIR dated 05.02.2018 of PW1,
the victim, reads thus:- On 04.02.2018, i.e., a day prior to the date
of incident, he along with his mother and his three sisters went to
attend a wedding in their neighbourhood at around 9:00 P.M. After
the wedding programme ended, and while on his way home, a man
(the accused) approached him and told him that the former would
give him a game and asked him to join the former. When he
CRL.A. 607/2023 Page 11 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
declined, the accused grabbed his hand and forcibly took him to a
shop in front of Hanuman Dharam Kanta, Kanwar Singh Nagar.
The accused opened the shop’s shutter, took him inside, closed the
shutter, and made him sit down. When he told the accused that he
wanted to go home, the latter responded by saying that he would
let him go soon and offered him Maaza juice. Despite his refusal,
the accused forcibly made him drink the juice. The accused caught
hold of him and began committing lewd acts. The accused
attempted to insert his penis into his mouth. When he resisted, the
accused hit his legs with a hammer. The accused also beat, kicked
and punched him. Then the accused threw him onto the floor
inside the shop, forcibly removed his pants, and inserted the
former’s penis into his anus. Thereafter, the accused threatened
him with dire consequences in case he revealed the incident to
others. (“मुझे पकड़ कर ग ी हरकत करने लगा और अपना िलंग मेरे मुँह म डालने
लगा जब मने इसका िवरोध िकया तो उसने हथोड़े से मेरे पैरों पर मारा और लात-घूसो से
मेरी िपटाई की और मुझे दु कान के अ र जमीन पर डालकर जबरद ी मेरी पट उतारकर
CRL.A. 607/2023 Page 12 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
मेरी लेटीन वाली जगह म अपना िलंग डालकर मेरे साथ गलत काम िकया और गलत काम
करने के बाद मुझे धमकी दी िक इस बारे म िकसी को कुछ बतलाया तो जान से मार दू ँ गा”)
PW1 further stated that there were gas stoves and small cylinders
kept inside the shop. After the incident, he somehow reached home
and narrated the incident to his father (PW3), who then took him to
the hospital. PW1 also stated that he can identify the person who
abused him.
15. Exhibit PW1/B Section 164 Cr.PC statement of PW1,
the victim, seen recorded by the Magistrate on 08.02.2018 reads
thus:- He went to a party along with family on the night of
04.02.2018. When he was about to leave, an uncle (the accused)
asked him to accompany the latter who promised to give him a
video game. He went along with the said uncle (the accused). The
accused took him inside a shop and when he asked for the game,
the accused did not give any. Then, when he asked the accused to
let him go, the accused refused to let him go, and slapped him. The
accused hit him with a knife and a hammer and committed lewd
CRL.A. 607/2023 Page 13 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
acts on him. The accused made him drink juice laced with some
substance, removed his pants and put the former’s private part into
his mouth. When he resisted, the accused beat him and hit him on
the head again with a hammer. (“उ ोंने मेरे साथ गंदी हरकत भी की थी।
उ ोंने मेरी पट उतार दी। उ ोंने मुझे माजा म कुछ िपलाया था। उ ोंने अपना पेशाब
करने वाला पाट लेकर मेरे मुँह म डाल िदया। मेरे मना करने पर उ ोंने मुझे मारा। उ ोंने
मुझे हथौड़े से िफर सर पर मारा”) He cannot recall what happened
thereafter. The accused had hit him on the face, head, and neck
with a knife and a hammer.
15.1. PW1, when examined before the trial court, more or
less stood by his version in the earlier statements. PW1 in the box
has also a case that not only did the accused brutally beat him up
with a hammer and screw driver, but had also slashed his face with
blades and scratched him with nails. The accused after assaulting
him, threw him at some distance away from that shop (“mujhe
uthakar usne kahi bahar dusri jagah phenk diya. Woh jagah uss
dukaan se dur thhi”). PW1 further deposed that when he gained
CRL.A. 607/2023 Page 14 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
consciousness, it was still dark. When he reached his house, he
saw his family waiting outside. As soon as he reached home, he
collapsed and lost consciousness. Thereafter his family members
took him to the hospital. When he gained consciousness, his
mother told him that when he reached home, his shirt, pants and
his shoes were blood stained. His father (PW2) informed the
police. PW1 indentified the accused in the box. The hammer stated
to have been used by the accused was identified by PW1 and the
same has been marked as Ext. P1. PW1 also identified the
underwear, he was wearing at the relevant time, which has been
marked as Ext. P2.
15.2. PW1, in his cross examination, deposed that he has no
prior acquaintance with the accused. PW1 denied the defence
version that there was a quarrel between him and the accused
relating to payment of repair charges of a gas stove, frying pan,
etc., which led to the registration of this case.
CRL.A. 607/2023 Page 15 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
16. PW2, owner of Khasra No. 19/10, Kanwar Singh
Nagar, Nangloi, Delhi, deposed that the one of the shops in the
property had been rented out to the accused, who was running a tea
shop there. At the time of the incident, the accused was residing in
the said shop.
17. PW3, the father of PW1, deposed that on the date of the
incident, his wife and daughters returned home at around 10:00
P.M or 10:30 P.M. His wife was under the impression that PW1
had returned home. When he told her that PW1 had not returned
home, she returned to the place of the function, but could not
locate PW1. Hence, he along with his neighbours searched for
PW1 till about 2:00 A.M. to 2:30A.M. By the said time, PW1
returned home drenched in blood. PW1 could barely walk. When
he enquired the matter, PW1 told him that an uncle (the accused)
had persuaded him to accompany him on the pretext of giving him
a video game. The accused had offered to give video games to two
to three other children also. But, instead of taking all of them
CRL.A. 607/2023 Page 16 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
along, the accused took PW1 alone with him, assuring the latter
that he would hand over all the video games meant for the other
children to him. (“sabke video games tujhe hi de doonga”) PW3
further deposed that his son (PW1) further told him that the
accused, under the pretext of giving him a video game, had
committed “galat kaam” with him. His son told him that the
accused had removed the former’s clothes and inserted the latter’s
penis into his anus, thereby committing penetrative sexual assault
upon him. PW3 further deposed that his son had also told him that
the accused had physically assaulted him using a hammer
(hathoda), chisel (chheni), screwdriver (pechkas), etc. On hearing
this, he informed the police. He waited for about 30 minutes,
however, the police did not come and so, he took his son to
Bhagwan Mahavir Hospital, where he was provided medical
treatment. The police subsequently arrived at the hospital and took
the child for medical examination to Ambedkar Hospital. His son
was discharged in the evening of 05.02.2018.
CRL.A. 607/2023 Page 17 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
17.1. PW3 in his cross examination deposed that the place of
incident is about 10 minutes walking distance from his house.
PW3 also deposed that there were injuries on the entire body of his
son. Blood was oozing from his hand and his left eye was shut and
bruised. There were injuries on his son’s face also. PW3 denied
having sent any utensils for repair to the accused or that there was
a quarrel between the accused and his son relating to the payment
of repair charges. According to PW3, he himself being a
technician, there was no necessity to send the articles for repair to
the accused.
18. PW5, CMO, Bhagwan Mahavir Hospital, Pitampura,
Delhi, deposed that on 05.02.2018, a boy aged 16 years (PW1) was
brought in emergency by his father (PW3) with a history of assault
and loss of consciousness. PW5 further deposed that after
examining PW1, he referred the latter to surgery emergency for
further management and treatment as the boy was found
unconscious. He had prepared Ext. PW5/A MLC.
CRL.A. 607/2023 Page 18 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
19. PW6, head constable, Nihal Vihar, police station,
deposed that on 15.03.2018, he collected three sealed pullandas
and two sample seals from MHC(M) vide RC No. 41/21/18 and
deposited the same at FSL, Rohini. PW6 further deposed that the
case property was not tampered with so long as it was in his
possession.
20. PW7, Senior Forensic Chemical Examiner (Assistant
Director) Regional FSL, Chanakyapuri, New Delhi, deposed that
on 15.03.2018 three sealed parcels received in FSL Rohini were
allotted to him for DNA examination. The seals were intact on the
packets. On examination, he found that the DNA profile generated
from the source of exhibit “p” (blood sample of PW1) to be similar
with that of the DNA profile generated from the source of exhibit
“1n1” (Cotton wool swab), “1n2” (microslide) and “4” (underwear
of the accused). He prepared Ext. PW7/A FSL report. PW7, in his
cross examination admitted that DNA can be contaminated during
transporting and packaging. According to PW7, the percentage
CRL.A. 607/2023 Page 19 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
accuracy of gene-mapper ID-X is more than 99%. He denied the
suggestion that the percentage accuracy was only 80%. PW7
further deposed that DNA examination was processed three times
to avoid any chance of technical error during analysis. In the case
on hand, the results were the same on all three occasions.
21. The appellant/accused stands convicted of the offences
punishable under Sections 363, 342, 324, 377, 506(II) IPC and
Section 6 of the PoCSO Act. In order to bring home the offences
under these sections, the prosecution is required to establish that
the accused had kidnapped the minor victim, wrongfully confined
him, caused hurt by dangerous weapons, committed carnal
intercourse against the order of nature, subjected him to aggravated
penetrative sexual assault within the meaning of Section 6 of the
PoCSO Act and had also criminally intimated him. Section 6 of the
POCSO Act provides punishment for aggravated penetrative
sexual assault. The essential ingredients include: (i) commission of
penetrative sexual assault as defined under Section 3 thereof; and
CRL.A. 607/2023 Page 20 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
(ii) existence of aggravating circumstances as enumerated under
Section 5 thereof.
22. In the written submissions submitted, it is contended
that there are several inconsistencies, improvements,
contradictions in the testimony of PW1 and PW3 which
undermines the prosecution case. The argument reads thus:-
“F. INCONSISTENCIES/IMPROVEMENTS/CONTRADICTIONS
IN TESTIMONIES)
38. The testimonies of the victim (PW1) and the father of the
victim (PW3) have various inconsistencies/ improvements/
contradictions which undermines the prosecution’s case.
i. Allegations of forceful carnal intercourse
39. The victim in his 161 statement to the police alleges that
he was subjected to carnal intercourse but in his 164
statement he contradicts himself and does not mention being
subjected to penile penetration.
ii. Allegation of forcefully been taken to the site of the
incident and improvements regarding the weapon of injury
40. In his Section 161 CrPC statement, the victim alleged
CRL.A. 607/2023 Page 21 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
that he was forcibly taken by the appellant and hit with a
hammer on his head and knees. In his Section 164 CrPC
statement, he changed his version to say that he accompanied
the appellant to the shop voluntarily and then was hit by a
hammer and knife. In his chief examination, the victim
deposed that he accompanied the appellant to the shop, was
hit with a hammer and screwdriver, slashed in the face with a
blade.
iii. Father’s improvements in his testimony
41. In is police statement, PW3 (father of the victim) merely
confirmed that the police recorded the victim’s statement,
without narrating the incident. However, in his testimony
before the court, PW3 gave a detailed description of the
incident, introducing new facts, including the use of a chisel
by the appellant, an allegation never made by the: victim
himself.”
23. Statements made under Section 161 Cr.P.C. are
statements made to the police during the course of investigation
and the same cannot be used except for the purpose stated in the
proviso to Section 162(1) Cr.P.C. Under the proviso to Section
162(1) Cr.P.C., such statements can be used only for the purpose
of contradicting a prosecution witness in the manner indicated in
CRL.A. 607/2023 Page 22 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
Section 145 of the Evidence Act and for no other purpose. They
cannot be used for the purpose of seeking corroboration or
assurance for the testimony of a witness in court. [See Tahasildar
Singh v. State of UP, AIR 1959 SC 1012; Satpal v. Delhi
Administration, (1976) 1 SCC 727 and Delhi Administration v.
Lakshman Kumar, 1985 KHC 741: (1985) 4 SCC 476].
23.1. Now, the question is what constitutes a contradiction or
an omission amounting to contradiction and how can the same be
proved? The contradiction under Section 162 is between what a
witness asserted in the witness box and what he stated before the
police officer, and not between what he said he had stated before
the police officer and what he actually made before him.
23.2. A three – Judge Bench of the Apex court in the case
of V. K. Mishra v. State of Uttarakhand, 2015 (9) SCC 588,
after due consideration of Section 161 Cr.PC and Section 145 of
the Evidence Act, held that the statements under Section 161 CrPC
recorded during the investigation are not substantive pieces of
CRL.A. 607/2023 Page 23 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
evidence but can be used primarily for the limited purpose: (i) of
contradicting such witness by an accused under S.145 of the
Evidence Act; (ii) the contradiction of such witness also by the
prosecution but with the leave of the Court; and (iii) the re –
examination of the witness if necessary. The court cannot suo motu
make use of statements to police not proved and ask questions with
reference to them which are inconsistent with the testimony of the
witness in the court. The words in Section 162 Cr.PC ‘if duly
proved’ clearly show that the record of the statement of witnesses
cannot be admitted in evidence straightaway nor can be looked
into but they must be duly proved for the purpose of contradiction
by eliciting admission from the witness during cross – examination
and also during the cross – examination of the investigating officer.
The statement before the investigating officer can be used for
contradiction but only after strict compliance with Section 145 of
the Evidence Act that is by drawing attention to the parts intended
for contradiction. Under Section 145 of the Evidence Act when it
CRL.A. 607/2023 Page 24 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
is intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must be called
to those parts of it which are to be used for the purpose of
contradicting him, before the writing can be used. While recording
the deposition of a witness, it becomes the duty of the trial court to
ensure that the part of the police statement with which it is
intended to contradict the witness is brought to the notice of the
witness in his cross – examination. The attention of witness is
drawn to that part and this must reflect in his cross – examination
by reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need to further
proof of contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the statement, his
attention must be drawn to that statement and must be mentioned
in the deposition. By this process the contradiction is merely
brought on record, but it is yet to be proved. Thereafter when
investigating officer is examined in the court, his attention should
CRL.A. 607/2023 Page 25 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
be drawn to the passage marked for the purpose of contradiction, it
will then be proved in the deposition of the investigating officer
who again by referring to the police statement will depose about
the witness having made that statement. The process again
involves referring to the police statement and culling out that part
with which the maker of the statement was intended to be
contradicted. If the witness was not confronted with that part of the
statement with which the defence wanted to contradict him, then
the court cannot suo motu make use of statements to police not
proved in compliance with Section 145 of the Evidence Act that is,
by drawing attention to the parts intended for contradiction.
23.3. In Anees v State Government of NCT, 2024 KHC
6256:AIR 2024 SC 2297, it has been held that the words ‘if duly
proved’ used in Section 162 Cr.PC clearly show that the record of
the statement of witnesses cannot be admitted in evidence
straightaway, nor can be looked into, but they must be duly proved
for the purpose of contradiction by eliciting admission from the
CRL.A. 607/2023 Page 26 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
witness during cross – examination and also during the cross –
examination of the Investigating Officer. The statement before the
Investigating Officer can be used for contradiction but only after
strict compliance with Section 145 of the Evidence Act, that is, by
drawing attention to the parts intended for contradiction (See
also Tahsildar Singh v State of UP, 1959 KHC, 577:AIR 1959
SC 1012; Munna Pandey versus State of Bihar, 2023 KHC
6817: AIR 2023 SC 5709 and Ramu Appa Mahapatar versus
State of Maharashtra, 2025 KHC 6103:AIR 2025 SC 961).
24. Coming to the case on hand, on going through the
testimony of PW1 and PW3, I do not find that the procedure
contemplated under Section 145 of the Evidence Act was resorted
to at any point of time and, therefore, the appellant/accused cannot
at this point of time rely on the alleged contradictions in the
testimony of PW1 and PW3.
25. Another argument advanced is regarding the material
CRL.A. 607/2023 Page 27 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
objects/case property in the case. According to the
appellant/accused, the trial court has concluded that Ext. PW5/A
MLC and Ext. PW7/A FSL corroborates the statement of the
prosecution witnesses. However, the trial court failed to take into
consideration the fact that chain of custody had not been
maintained at all throughout the period of investigation. As per
Ext. PW4/X, the seizure memo relating to PW1 states that the
swab kit and his underwear had been seized, packed and sealed.
Ext. PW8/C seizure memo of the appellant/accused notes that one
blood gauze and one underwear had been seized, packed and
sealed. However, the hammer alleged to have been used for
assaulting PW1 purported to have been seized as per Ext. PW4/C
seizure memo was never sealed. The articles are stated to have
been seized on 05.02.2018 by ASI Ved Prakash. Going by the
aforesaid seizure memos, five objects/articles had been seized for
the purpose of investigation. But, there is no record of the
aforesaid articles being deposited in the malkhana. PW4 and PW9
CRL.A. 607/2023 Page 28 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
testified that after the articles were handed over by the doctor, the
same were in the possession of ASI Ved Prakash, the Investigating
Officer (I.O). However, there is no record to show as to when or
how the seized articles were deposited in the malkhana if, at all,
they were deposited. ASI Ved Prakash, the IO, died during the
stage of investigation. Hence, there is no evidence of any
conclusive timeline that can be set forth to explain when the seized
articles were deposited; what was the reason for the delay in
sending the articles to the FSL, or as to whether the articles were
ever deposited in the malkhana. This is a major defect in the
investigation whereby the credibility of the evidence on record has
been severely damaged and the chain of custody broken. Though
PW4 claimed that the case property was deposited in the
malkhana, the said statement cannot be verified as there is no
malkhana record. Even the MHC(M) who is supposed to have
maintained the register was never examined before the trial court.
Similarly, there was every possibility of the samples being
CRL.A. 607/2023 Page 29 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
tampered/manipulated by the police officers. The hammer, one of
the weapons alleged to have been used by the appellant/accused,
was never sealed after its alleged seizure. There are no materials
on record to show that the same was stored properly by the officer
concerned. Ext. PW4/A, the road certificate, shows that only three
articles were sent on 15.03.2018 to the FSL, namely, the swab kit
of the victim; blood gauze of the accused and underwear of the
accused. The underwear of PW1 was never sent for FSL. There is
also an inordinate delay of more than one month in forwarding the
seized articles to the FSL. There is no record that the articles
seized were stored properly during the period before being sent for
FSL. Though Ext. PW4/X and Ext. PW4/C seizure memos say that
PW1’s underwear and the hammer had been seized but the same
does not find a mention in Ext. PW4/A road certificate. But the
FSL records the victim’s underwear as part of parcel-1, which is
the swab kit. This shows that possibility of the articles being
tampered with while in the possession of the police. The hammer
CRL.A. 607/2023 Page 30 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
which was alleged to have been used by the appellant/accused to
hit the victim was never sent for FSL examination. When the link
in the chain of custody has repeatedly been broken at all stages of
the investigation, the argument advanced is that the credibility of
the evidence let in by the prosecution and its witnesses is severely
undermined. In support of the arguments, reference was made to
the dictums in Karandeep Sharma v. State of Uttarakhand,
2025 SCC OnLine SC 773 and Dinesh v. State, 2025 SCC
OnLine Del 4586.
26. At the risk of repetition, I once again refer to the
testimony of PW4, PW6, PW9 and PW8. PW4, Constable, Nihal
Vihar Police Station, deposed that on 05.05.2018, in his capacity
as the duty officer, he had accompanied ASI Ved Prakash, the IO,
to Mahavir Hospital, Pitampura, Delhi and collected the MLC of
the injured. The doctor had declared the injured unfit for statement.
The doctor had handed over to the IO one sealed pullanda and
sample seal which the IO seized as per Ext. PW4/X seizure memo.
CRL.A. 607/2023 Page 31 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
According to PW4, Ext. PW4/B is the disclosure statement of the
accused and that at the instance of the accused, one hammer had
been seized from his shop at Kanwar Singh Nagar near Hanuman
Dharam Kanta, Delhi, as per Ext. PW4/C seizure memo.
Thereafter, they returned to the police station and the case property
was deposited in the malkhana. The testimony of PW4 that the
case property had been deposited in the malkhana is not seen
cross-examined or challenged.
26.1. PW6, also a Constable of Nihal Vihar police station
deposed that on 15.03.2018, as directed by the IO, he had collected
three sealed pullandas and two sampled seals from MHC(M) for
depositing the same at the FSL, Rohini vide RC No. 41/21/18.
Thereafter, he had deposited the same at the FSL. He had handed
over the acknowledgement of copy of the RC to MHC(M). PW6
further deposed that as long as the case property remained with
him, the same had not been tampered with. He further testified
thus:- “Copy of RC is on the file and according to the original RC record
CRL.A. 607/2023 Page 32 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
brought by the present MHC(M), the same is Ext. PW-6/A (OSR) bearing
my signatures at point ‘A’. Copy of acknowledgement is also in file and
according to original acknowledgement record brought by the present
MHC(M), the same is Ex. PW-6/B (OSR) bearing my signatures at point
‘A’.” Apart from a suggestion that is seen put to PW6, there is
practically no cross-examination of PW6.
26.2. PW8 Sub-Inspector, Nihal Vihar police station deposed
that on 15.03.2018, he directed PW6 to collect the sealed parcels
from the MHC(M) for depositing the same at the FSL. The sealed
exhibits were deposited by PW6 at the FSL. PW8 also deposed
that ASI Ved Prakash, the IO in the case is no more. PW8
identified the signature and handwriting of the IO and the
documents which were prepared by the IO. He also identified the
handwriting and signature of the IO in Ext. PW8/C and Ext.
PW4/X seizure memos of the blood gauze, samples underwear of
the accused and the victim respectively which, according to him,
CRL.A. 607/2023 Page 33 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
were prepared by the IO. PW8 was never cross-examined by the
appellant/accused.
26.3. PW9, another Constable of Nihal Vihar police station
deposed that on 05.05.2018, as directed by ASI Ved Prakash, the
IO, he took the accused for medical examination to the SGM
Hospital. After the medical examination was conducted, the doctor
had handed over to him the blood gauze, sample and another
sealed parcel along with the sample seal. He returned to the police
station along with the accused, the sample and the seal given by
the doctor and handed over the same to the IO who seized the
same as per Ext. PW8/C seizure memo. The testimony of PW9 is
also not seen challenged or cross-examined except for a suggestion
that he was never part of the investigating team or that he had
never taken the accused to the hospital for examination.
27. That being the position, I find no reason(s) to disbelieve
the seizure or their safe custody till it was forwarded to the FSL.
CRL.A. 607/2023 Page 34 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
28. Be that as it may, Ext. PW6/A road certificate shows
that the following items were sent to the FSL. They are:-
“1. One white Box Carton containing swab kit of victim
Rohan, MLC No – 369/18 sealed with seal of BHM
Govt. of NCT of Delhi, Pitampura, Delhi.
2. One sample seal of BHM Govt of NCT of Delhi,
Pitampura, Delhi.
3. A white cloth parcel containing Blood gauge of the
Accused Parveen Kumar SGM No 21561, MLC No
1720 sealed with seal of SGMH Mangolpuri, Delhi.
4. A white cloth parcel containing underwear of
Accused Parveen Kumar, SGM No 21561, MLC No
1720 sealed with seal of SGMH Mangolpuri, Delhi.
5. One sample seal of Mangolpuri, Delhi.”
28.1. The underwear of the victim that is alleged to have
been seized does not find a mention in Ext. PW6/A. But Ext.
PW7/A FSL report says that the said underwear was part of parcel-
1 that was received at the FSL. This is certainly an anomaly in the
prosecution case.
28.2. The FSL report marked as Ext. PW7/A or the result of
CRL.A. 607/2023 Page 35 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
the examination is not based on examination of the underwear of
the victim. On the other hand, the results of examination and
conclusion in Ext. PW7/A FSL report reads thus:-
“RESULTS OF EXAMINATION
The source of exhibits ‘1n1’, ‘1n2’, ‘1p’ & ‘4’ were subjected
to DNA isolation. A Male DNA profile was generated from
the source of exhibits ‘1n1’ (cotton wool swab) ‘1n2’
(Microslides), ‘1p'(Blood collection of victim) &
‘4’(underwear of accused). The alleles from the source
exhibits ‘1n1’ (cotton wool swab) ‘1n2’ (Microslides) &
‘4’(underwear of accused) are accounted in the alleles from
the source of exhibit ‘1p’ (blood collection of victim) .
CONCLUSION
The DNA profiling (STR analysis) performed on the exhibits
is sufficient to conclude that the DNA Profile generated from
the source of exhibit ‘1p’ (blood collection of victim) is
similar with the male DNA Profile generated from the source
of exhibits ‘1n1’ (cotton wool swab) ‘1n2’ (Microslides) & ‘4’
(underwear of accused). The exhibit ‘3’ (Blood gauze of
accused) has been preserved in this laboratory for future
reference, if any.”
CRL.A. 607/2023 Page 36 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
29. As rightly pointed out on behalf of the
appellant/accused, there is certainly discrepancy between the items
mentioned in the road certificate and the articles mentioned as
received in the FSL report. But even if the FSL report is ignored,
that alone also cannot be a ground to automatically lead to the
acquittal of the accused because the scientific evidence can only
corroborate the testimony of the victim. If the said testimony is
credible and believable, there is no bar in the Court relying on the
same.
30. Another argument advanced is that Ext. PW5/A MLC
does not have any corroborative value as the same does not
corroborate the testimony of PW1. The case of PW1 is that the
appellant/accused had beaten him up brutally and had hit him on
his legs, head and face with a hammer and screwdriver and that the
accused had even slashed his face with a blade and scratched him
with nails. However, Ext. PW5/A MLC records that the injuries
were simple and blunt. None of the injuries listed in the certificate
CRL.A. 607/2023 Page 37 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
indicate that grievous injuries were caused. The allegation of PW1
that he was hit on the knees with a hammer does not find a
mention in the MLC. There is also nothing in the MLC to show
that there was any anal rape. If PW1 is to be believed, the assault
would have resulted in injuries on his anal area. However, no such
injuries have been noted, which will disprove the case of carnal
intercourse. Further, the doctor who examined the victim, was also
never examined. Two doctors had examined PW1. But Dr. Amit
who actually conducted an internal examination and made the
crucial observations in the MLC, was never examined. Therefore,
the prosecution case is not supported by medical evidence and
therefore, this is yet another anomaly in the case put forward by
the prosecution, goes the argument.
31. The relevant entries in Ext. PW5/A MLC under the
heading “Particulars of injuries or Symptoms, in case of
poisoning”, the doctor has recorded thus:-
CRL.A. 607/2023 Page 38 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
“Nasal Bleeding — Present G.C. — fair.
P/A — soft, non-tender
L/E
① Multiple small Abrasions & Bruises over face, head
& Neck.
② clotted Blood on Nasal opening
③ Swelling & Blackening all around Ⓡ eye.
④ Ⓡ cheek, Maxilla, & Mandible swelling
⑤ Swelling & Blackening Below Ⓡ eye.
P/R — Rectal swabs were taken & Matted hair was
taken in separate packets
— Perianal region was wet and swollen……”
31.1. In the column relating to the kind of weapon used, the
doctor has opined “blunt”. PW5 CMO, Bhagwan Mahavir
Hospital, Pitampura, Delhi deposed that on 05.05.2018, the victim
boy (PW1) was brought to the emergency ward by his father with
an alleged history of assault and loss of consciousness. He had
examined the boy and prepared Ext. PW5/A MLC. After
examining the patient, he had referred him to the surgery
emergency for further management and treatment as the boy was
found to be unconscious. In his cross-examination, he admitted
that he had no personal knowledge of the present case. According
CRL.A. 607/2023 Page 39 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
to PW5, he had found injuries on the person of the victim and,
therefore, he had referred him to surgery. To a question whether he
had mentioned any injury found on the person of the victim in the
MLC, he answered in the negative. But he added that he had
referred the injured to surgery because of the injuries seen on the
body of the person. Apart from these two questions, no other
questions are seen to put to PW5, the doctor.
32. According to PW1, he was beaten by the accused on his
legs with a hammer, screwdriver and blade had been used to slash
his face. The MLC shows that there were multiple abrasions and
bruises over face, head and neck. Blood had clotted on the nasal
opening. There was swelling and blackening all around the right
eye. The swelling was seen on the cheek, maxilla, mandible and
below right eye. The perianal region was found wet and swollen.
The injuries were spoken to by PW3, the father also. There might
have been slight exaggeration of the injuries caused by the accused
in the testimony of PW1. But the medical evidence more or less
CRL.A. 607/2023 Page 40 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
corroborates the testimony of PW1 and, therefore it is not a case
where the medical evidence totally rules out any case of sexual
abuse or harassment as spoken by PW1.
33. It is true that materials on record relating to the seizure
of the hammer from the shop of the accused are quite
unsatisfactory. Ext. PW4/B stated to be the disclosure statement of
the accused and the seizure/recovery of the hammer from the room
of the accused as per Ext. PW4/C Seizure memo are apparently
inadmissible in evidence because of the bar contained under
Section 25 of the Evidence Act. The same by no stretch of
imagination can be brought under Section 27 of the Evidence Act
also. But recovery of weapon used for the crime is not a sine qua
non for coming to a conclusion regarding the guilt of the accused
(Rakesh v. State of U.P., (2021) 7 SCC 188).
34. It is true that there is only the testimony of PW1, the
victim, in support of the case. On going through the testimony of
PW1, I find no reason(s) to disbelieve him. Minor discrepancies
CRL.A. 607/2023 Page 41 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
are natural, particularly when the witness is a child who has
undergone a traumatic experience and the same cannot be used to
discard an otherwise reliable testimony. It is also impermissible to
rely upon isolated words or sentences from the testimony of a
witness to draw conclusions. The evidence must be appreciated in
its entirety and not by reading portions thereof in isolation. (See
Mustak Vs. State of Gujarat, (2020) 7 SCC 237 and Mukesh
Vs. State for NCT of Delhi, AIR 2017 SC 2161).
35. The argument that no independent witnesses were
examined is not fatal to the prosecution case because the incident
in this case took place inside a closed shop and no materials have
come on record to show that there were any other witnesses
present in and around the locality. It is well settled that the
competency of a child witness depends on the satisfaction of the
trial court, as to the child’s understanding and ability to depose and
though courts must remain alive to the possibility of tutoring, there
is no bar in law to base conviction solely on the testimony of a
CRL.A. 607/2023 Page 42 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
child witness who withstands cross-examination (See State of
Rajasthan v. Chatra, 2025 SCC OnLine SC 566). It is also well
settled law that a child victim’s testimony requires no
corroboration to be considered credible and Section 29 of the
Protection of Children from Sexual Offences Act, 2012 creates a
statutory presumption of guilt once the foundation facts are
established. (Bhanei Prasad @ Raju V State of Himachal
Pradesh, 2025 INSC 934).
36. In the case on hand, PW1 was not a very young child
but aged about 15 to 16 years at the time of the incident.
Therefore, PW1 is a witness who could certainly have understood
and comprehended the things that happened to him and capable of
narrating it to the authorities concerned. The defence version that
the appellant/accused has been falsely implicated due to a dispute
regarding repair charges, seems highly improbable. No materials
have been brought in to show that there was any reason(s)
whatsoever for PW1 or his family to falsely implicate the accused.
CRL.A. 607/2023 Page 43 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
Further, PW3, the father of the victim deposed that as summoned
by the police, he and his son had gone to the police station at
which time, the accused was also present. In the words of PW3 –
“…. the accused was also present there and at that time, he was laughing
and had no remorse.” This part of the testimony of PW3 is never
seen challenged or cross-examined. On an overall appreciation of
the materials on record, I do not find any reason(s) to doubt the
prosecution case. Hence, I find that the impugned judgment does
not suffer from any perversity or illegality calling for an
interference by this court.
37. The only question that remains for consideration of this
court is on the quantum of sentence awarded by the trial court. The
trial court has awarded a sentence of 15 years for the offence
punishable under Section 6 read with 5 (l) & (n) of the PoCSO.
The sexual abuse in this case took place during the intervening
night of 04.02.2018-05.02.2018. Section 6 of the PoCSO Act as it
then stood reads thus:-
CRL.A. 607/2023 Page 44 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
“6. Punishment for aggravated penetrative sexual assault
— Whoever, commits aggravated penetrative sexual assault,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten year but which may extend to
imprisonment for life and shall also be liable to fine”
38. In the light of the dictum in Ravinder Singh v. The
State Govt. of NCT of Delhi, (2024) 2 SCC 323, the trial court
could not have imposed a sentence of 15 years, though the High
Court and the Apex Court are empowered to do so. Hence the
sentence imposed by the trial court is modified thus: considering
the nature and gravity of the offence and the facts of the present
case, the minimum sentence of 10 years would not suffice.
Accordingly, the sentence is modified to a period of 14 years’
rigorous imprisonment.
39. In the result the appeal is partly allowed. The
conviction of the accused for the offences punishable under
Sections 363, 342, 324, 377 and 506(II) IPC and Section 6 of the
PoCSO Act is confirmed. However, the substantive sentence of
CRL.A. 607/2023 Page 45 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
imprisonment imposed by the trial court for the offence punishable
under Section 6 of the PoCSO is modified to 14 years.
40. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 08, 2026
kd/p’ma
CRL.A. 607/2023 Page 46 of 46
Signature Not Verified
Signed By:KOMAL
DHAWAN
Signing Date:08.05.2026
14:48:27
