Delhi High Court
Nirmal Kumar vs State Of Nct Of Delhi And Anr 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. 844/2024 & CRL.M.(BAIL) 512/2026
NIRMAL KUMAR .....Appellant
Through: Ms. Aishwarya Rao and Ms. Mansi
Rao, Advocates
versus
STATE OF NCT OF DELHI AND ANR. .....Respondents
Through: Mr. Utkarsh, APP for the State with
SI Reena Kumari, P.S. Budh Vihar.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) read with
Section 482 of the Criminal Procedure Code, 1973 (the Cr.P.C.),
the sole accused in Sessions Case No. 588/2022 on the file of the
Additional Sessions Judge (PoCSO) North West, Rohini District
Courts, Delhi, assails the judgement dated 12.12.2024 and order on
sentence dated 22.07.2024, as per which he has been convicted and
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sentenced for the offences punishable under Sections 366, 363 and
376(2)(n) of the Indian Penal Code, 1860 (the IPC) and Section 5
(l) read with 6 of the Protection of Children from Sexual Offences
Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 05.03.2022, at about
02:00 PM, the accused kidnapped PW1, a minor girl aged about 15
years, out of the keeping of the lawful guardian with the intent to
force or seduce her into illicit intercourse, took her to the house of
his brother at Haridwar, where he repeatedly committed
aggravated penetrative sexual assault/ rape on her. Hence, as per
the chargesheet/ final report, the accused is alleged to have
committed the offences punishable under the abovementioned
Sections.
3. On the basis of Ext. PW2/A FIS/FIR of PW2, given on
05.03.2022, Crime no. 204/2022, Budh Vihar Police Station, i.e.,
Ext. PX1/A FIR was registered by PW4, Sub-Inspector. PW6 Sub-
Inspector conducted investigation into the crime and on
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completion of the same, filed the chargesheet/final report 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.P.C. After hearing both sides,
the trial court, vide order dated 21.07.2022, framed a Charge under
Sections 363, 366, 376(2)(n) IPC and Section 5(l) read with 6 of
the PoCSO Act, which was read over and explained to the accused
to which he pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 6 were
examined and Ext. PX1/A-D, Ext. PW1/A, Ext. PW2/A, Ext.
PW3/A-D, Ext. PW4/A, Ext. PW5/A-C, and Ext. PW6/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.P.C. regarding the
incriminating circumstances appearing against him in the evidence
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of the prosecution. The accused denied all those circumstances and
maintained his innocence. The accused submitted that he has been
falsely implicated in the present case and that PW1 had lodged a
false case against him at the instance of PW2, her mother. The
accused also submitted that he was told by PW1 and her mother
that PW1 was 18 years old when he had visited their house.
7. After questioning the accused 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 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
2888). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C. has caused any prejudice to him.
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8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 12.02.2024 held the accused
guilty of the offences punishable under Sections 376(2)(n), 366
and 363 IPC and Section 5 (l) and 6 PoCSO Act. Vide order on
sentence dated 22.07.2024, sentenced him to undergo rigorous
imprisonment for a period of 20 years and to fine of ₹30,000/-, and
in default of payment of fine, to simple imprisonment for a period
of 6 months for the offence punishable under Section 6 PoCSO
Act; and to rigorous imprisonment for a period of 7 years each and
to fine of ₹10,000/-, and in default of payment of fine, to simple
imprisonment for a period of three months for the offences
punishable under Sections363 and 366 IPC. The sentences have
been directed to run concurrently. Aggrieved, the accused has
preferred this appeal.
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10. The learned counsel for the appellant/accused
submitted that the prosecution has failed to establish the
ingredients of penetrative sexual assault as contemplated under
Section 3 of POCSO Act and Section 376 IPC.PW1 made
inconsistent statements in her Section 164 Statement and in her
examination-in-chief. Further, PW1refused to undergo internal
examination, which has been recorded by the doctor in
Ext.PX1/D MLC. (Main apni androoni janch nahi karwana
chahti). Therefore, the trial court has erred in relying on the
sole testimony of PW1, who can never be considered a sterling
witness.
10.1. It was further submitted by the learned counsel
for the appellant/ accused that PW1 has merely used the
expression “physical relations” or “sharirik sambandh” in her
Section 164 Statement without elaborating upon the nature of
the act. Such vague testimony does not establish penetrative
sexual assault and so no presumption under the PoCSO Act can
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be drawn. It was pointed out that no effort had been made by
the prosecutor or the trial court to elicit clear particulars
regarding the alleged “physical relations”. “Physical relations”
does not mean sexual intercourse and in support of the
argument, reference was made to the dictums in Sahjan Ali v.
State, 2024 SCC OnLine Del 9079; Rahul v. State (NCT of
Delhi), 2025 SCC OnLine Del 6517 and Depesh Tamang v.
State of Sikkim, 2020 SCC OnLine Sikk 24.
11. The learned Additional Public Prosecutor
submitted that the impugned judgment does not suffer from any
infirmity warranting interference by this court as the trial court
has duly considered each and every ground raised in the present
appeal and, upon an overall appreciation of the materials on
record, adjudicated the matter on merits. It was further
submitted that the accused never had any defence as now
canvassed on his behalf. While questioned under Section
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313(1)(b) Cr.P.C., he simply denied the case claiming it to be a
false implication by PW1 and her mother PW2.
12. Heard both sides and perused the materials on
record.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgement calling for an interference by this court.
14. I make a brief reference to the oral and
documentary evidence relied on by the prosecution in support of
the case Ext. PW2/A, the FIS/FIR given byPW2, mother of
PW1 is a missing complaint. According to PW2, on05.03.2022,
at about 02:00 PM, her daughter (PW1) left the house without
informing anyone. They searched for her daughter (PW1), but
was unable to trace her. Some unknown person has enticed and
taken away her daughter. Hence, appropriate legal action may
be taken.
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15. PW1, the victim, in Ext. PX1/B Section 164
Statement recorded on 26.03.2022 has stated thus:- She is in
love with Nirmal Kumar(the accused). None of her family
members were aware of the relationship. Even if she had told
her family about the relationship, they would not have agreed to
her marriage with him. So she eloped with Nirmal Kumar on the
5th of March. They got married at Haridwar on 07.03.2022 and
thereafter went to the house of his elder brother, where they
stayed for a few days. Thereafter, Nirmal Kumar started
working. On the date of marriage, she was with her husband, on
which day they had physical relations. After that nothing
happened. Thereafter, she started sleeping with his sister-in-law
while he slept with his brother. She wishes to live with Nirmal
and does not want to go with her family members.
15.1. PW1, when examined before the trial court,
deposed that she was unaware that the accused was a married
man. According to PW1, the accused used to talk to her “very
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sweetly and had shown rosy pictures to me aur isne muje fasa
liya.” The accused repeatedly asked her to marry him and he
used to make conference calls with his relatives, with whom
she also used to speak. On 05.03.2022, the accused lured her
and took her from Delhi to Uttar Pradesh, where he first took
her to the house of his niece, and thereafter to Haridwar where
the accused again insisted upon marriage and, believing him to
be a bachelor, she married him on 07.03.2022.Thereafter, the
accused took her to the house of his elder brother situated at
Kelial Gaon, Bihar, where he established physical relations
with her despite her refusal, at which time, she was below 18
years of age. They stayed there for about 20 days, during which
time the accused repeatedly and forcibly had physical relations
with her. Thereafter, the police came and brought both her and
the accused back to Delhi.
15.2. PW1 in her cross-examination deposed that the
accused used to call her three to four times a day and repeatedly
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asked her to marry him, and that such requests continued from
February till 05th March. PW1 admitted that she had not
informed her mother about these interactions. PW1 denied the
suggestion that she had threatened to end her life if the accused
did not marry her. PW1 admitted that she had affection for the
accused but she was unaware that he was a cheat and further
stated that she no longer loved him (Yeh baat sahi hai ki mai
use pyar karti thi lekin mujhe ye nahi pata tha ki ye dhokebaaj
hai. Ab mai us se pyar nahi karti). PW1 denied the suggestion
that she was deposing falsely or under pressure from her family
members. She also denied that she was testifying at the instance
or under the influence of her mother.
16. PW2, mother of PW1, supports the prosecution
case.
17. PW3, Primary Teacher, MC Primary School,
produced the school admission register and original birth
certificate of PW1 and the same were marked as Ext. PW3/A
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and Ext. PW3/B respectively. As per the same, the date of birth
of PW1 is 31.01.2007.
18. The trial court has found the accused guilty of the
offences punishable under Section 363, 366, and 376(2)(n) IPC
as well as Section 6 PoCSO Act. In the light of Section 42
PoCSO Act, no separate sentence has been passed for the
offence punishable under Section 376(2)(n) IPC. Section 363
IPC deals with punishment for kidnapping. Section 361 IPC,
which defines kidnapping from lawful guardianship, says that
whoever takes or entices any minor under sixteen years of age,
if a male, or under eighteen years of age, if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the
consent of such guardian, commits the offence of kidnapping
from lawful guardianship. Section 366 IPC deals with
kidnapping, abducting or inducing woman to compel her
marriage. As per this Section, any person who kidnaps or
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abducts any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled to marry any
person against her will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, is liable to be
punished with imprisonment and fine. The Section also says
that whoever by means of criminal intimidation as defined in
the Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she will
be forced or seduced to illicit intercourse with another person is
also liable to be punished.
19. PW1 in her statement under Section 164 CrPC,
which is her first statement, has no case of inducement or
enticement and stated that she had voluntarily joined the
accused to marry him. On the other hand, her case in the box is
that the accused repeatedly requested her to marry him and that
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he lured her and took her first to UP and then to Haridwar,
where he married her. As held in S. Varadarajan v. State of
Madras, 1964 SCC OnLine SC 36 : (1965) 1 SCR 243, there
is a distinction between “taking” and merely allowing a minor
to accompany a person. Where a minor, having sufficient
understanding, voluntarily leaves the protection of her guardian
and joins the accused, it cannot be said that the accused has
“taken” her, unless there is clear evidence of inducement or
active participation in forming such intention. In the case on
hand, there does not appear to be any specific act of inducement
or active role on the part of the accused in causing PW1 to leave
her lawful guardian’s custody. In fact the case of PW1 is that
she loved the appellant/ accused, but later on she realised that he
was already married and hence a cheat. Apart from the version
of PW1, there are no materials to show that the accused was in
fact a married man when PW1 eloped with him. Hence, I find
that the essential ingredients of the offences punishable under
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Sections 363 and 366 IPC have not been satisfactorily
established. Accordingly, the trial court went wrong in
convicting the appellant/accused for the offences punishable
under Sections 363 and 366 IPC.
20. Coming to the offence punishable under Section 6
POCSO Act. The date of the incident in this case is 07.03.2022.
As per Ext. PW3/A and PW3/B, the date of birth of PW1 is
31.01.20107. Therefore, PW1 was about 15 years old at the
time of the incident. The fact that PW1 was a minor is not
disputed.
21. The only question that requires consideration is
whether the aforesaid materials on record is sufficient to attract
the ingredients of the offence contemplated under Section 5(l)
punishable under Section 6 of the PoCSO Act. Section 5(l) of
the PoCSO provides that whoever commits penetrative sexual
assault on a child more than once or repeatedly shall be deemed
to have committed aggravated penetrative sexual assault.
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Section 3 of PoCSO Act defines penetrative sexual assault. As
per the Section, a person is said to commit “penetrative sexual
assault” if-
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do so
with him or any other person; or
(c) he manipulates any part of the body of the
child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or makes
the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the child to do so to
such person or any other person.
22. The entire prosecution case rests upon the
testimony of PW1 to establish that the accused committed
penetrative sexual assault. In the Section 164 CrPC statement as
well as in testimony before the trial court, PW1 has only used
the expression “physical relation” or “shareerik sambandh”,
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without actually describing the nature of the act committed by
the accused. Ext. PX1/D MLC is not disputed by the accused,
and the same is seen marked on consent under Section 294
Cr.P.C. PW1 was unwilling to undergo complete medical
examination. Further, the doctor in Ext. PX1/D MLC in column
C under the heading “Local examination of genital parts” has
recorded thus: -“Internal examination not done. Patient not
willing”. Therefore, there is no material to show whether the
hymen was intact or torn or whether there was any injury or of
any sort on the genitals of PW1. Further, PW1 in her Section
164 Statement has only a case that on the date of marriage she
had “physical relations” with the appellant/ accused and
thereafter there was never any such relations. But PW1 in the
box has a case that the appellant/ accused had repeatedly raped
her several times. Hence, in the light of such unsatisfactory
testimony of PW1 coupled with the absence of any medical
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evidence, the benefit of doubt will have to be given to the
accused.
23. It is true that Section 29 of the POCSO Act
provides that the Court shall presume that the accused has
committed or abetted or attempted to commit the offence, as the
case may be, unless the contrary is proved. However, this
statutory presumption is not automatic and can operate only after
the prosecution has first established the foundational facts
constituting the alleged offence. From the materials on record
and testimony of PW1, it cannot be concluded that the
prosecution has established its case beyond reasonable doubt
against the accused.
24. In the result, the appeal is allowed. The
appellant/accused is acquitted under Section 235(1) Cr.P.C. of
the offences punishable under Sections 363, 366, 376(2)(n) IPC
and Section 5(l) read with 6 of the PoCSO Act. He is set at
liberty and his bail bonds shall stand cancelled.
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25. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 8, 2026
rs
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