Delhi High Court
Shambhu vs State on 13 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 08.07.2026
Judgment pronounced on: 13.07.2026
+ CRL.A. 278/2020 and CRL.M.(BAIL) 440/2020
SHAMBHU .....Appellant
Through: Mr. Himanshu Anand Gupta,
(DHCLSC) with Mr. Karan Jain, Ms.
Mansi Yadav, Mr. Shekhar Anand
Gupta, Mr. Mike Desai and Ms.
Navneet Kaur, Advocates.
versus
STATE .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Sheetal, P.S. Hauz Khas
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal filed under Section 374(2) read with
Section 383 of the Code of Criminal Procedure, 1970 (Cr.P.C.), by
the sole accused in Sessions Case No. 7836/2016, on the file of the
Additional Sessions Judge-05 (POCSO), South District, Saket
Courts, New Delhi, assails the judgment dated 12.12.2019 and
order on sentence dated 19.12.2019 as per which the accused has
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Signed By:RAMAN
SHARMA
Signing Date:13.07.2026
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been convicted and sentenced for the offences punishable under
Section 376(2) of the Indian Penal Code, 1860 (the IPC) and
Section 6 of the Protection of Children from Sexual Offences,
2012 (the PoCSO Act).
2. The prosecution case is that, during the period of one
year preceding 01.08.2016, at House No. 222-C, Second Floor,
Shahpur Jat, New Delhi, the accused on several occasions
committed penetrative sexual assault upon PW1, a minor girl aged
about 11-12 years. It is further alleged that, during the said period,
the accused criminally intimidated PW1 by threatening to kill her.
Hence, as per the charge-sheet/final report, the accused was
alleged to have committed the offences punishable under Sections
376(2)(f) and (n), 506 IPC and Section 6 of the PoCSO Act.
3. On the basis of Ext. PW1/B FIS/FIR of PW1, given on
01.08.2016, Crime no. 603/2016, Hauz Khas police station, that is,
Ext. PX FIR was registered by CW16, Sub-Inspector. PW8, Sub-
Inspector (SI), was entrusted with the investigation of the case. On
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SHARMA
Signing Date:13.07.2026
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completion of the investigation into the crime, the
chargesheet/final report was filed alleging the commission of the
offences punishable under the aforementioned sections.
4. Another person, namely, Tinku, was also named in
Crime no. 603/2016 and was subsequently arrayed as an accused
in the supplementary charge-sheet. However, he could not be
traced during the course of investigation. Consequently, he was
declared a proclaimed offender by the trial court vide order dated
16.09.2017.
5. 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 15.12.2016, framed a Charge under
Sections 376(2), 506 IPC and Section 6 of the PoCSO Act, which
was read over and explained to him, to which he pleaded not
guilty.
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Signed By:RAMAN
SHARMA
Signing Date:13.07.2026
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6. On behalf of the prosecution, PWs. 1 to 8 were
examined and Ext. PX-1, Ext. PX-2, Ext. PX-3, Ext. PX-4, Ext.
PX-5, Ext. PX-6, Ext. PX-7, Ext. PX, Mark PW1/A, Ext. PW1/B,
Ext. PW3/A-D, PW 6/A-C, Ext. PW7/A, Ext. PW8/A-C, Ext.
PW8/C1-C4, Ext. PW8/D-F, Mark PW8/A to PW8/B, Ext. EX ‘A’
and Ext. EX ‘B’.
7. 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 them in the
evidence led by the prosecution. He denied all those circumstances
and maintained his innocence. He submitted that he had sexual
intercourse with PW1 with her consent and that the latter at that
time was above 18 years of age. According to accused, the present
case was registered against him only because PW1 was pressurized
by her sister, who is his wife, to do so.
8. After questioning the accused under Section 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
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SHARMA
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case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen to have been 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.
9. No oral or documentary evidence was adduced by the
accused in support of his case.
10. Upon consideration of the oral and documentary
evidence and after hearing both sides, the trial court, vide the
impugned judgment dated 12.12.2019, convicted the accused for
the offences punishable under Section 376(1) IPC and Section 6 of
the PoCSO Act. Accordingly, the accused was sentenced to
undergo rigorous imprisonment for a period of thirty years and fine
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SHARMA
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of ₹1,000/- and in default of payment of the fine, to rigorous
imprisonment for a period of thirty days. Aggrieved, the accused
has preferred this appeal.
11. It was submitted by the learned counsel for the
appellant/accused that the prosecution failed to prove that PW1
was a minor at the time of the incident. The school records
regarding PW1’s date of birth are unreliable because they were
prepared based on the oral statement of PW4, the mother of PW1,
without any supporting documents. Further, PW4 herself admitted
that she had mentioned an incorrect age of PW1 at the time of
school admission.
11.1 It was further submitted that PW1 has consistently
stated that she was a major, that the relationship was consensual,
and that her earlier allegations were made due to fear of her sister,
the accused’s wife. The testimony of PW1 that she was a major
remained unrebutted, as the prosecution did not challenge it during
trial. Therefore, the prosecution failed to prove the appellant’s guilt
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SHARMA
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beyond reasonable doubt, entitling the appellant to the benefit of
doubt.
12. It was submitted by the learned Additional Public
Prosecutor that there is no infirmity in the judgment calling for an
interference by this Court.
13. Heard both sides and perused the record.
14. The only point that arises for consideration in this
appeal is whether there is any infirmity in the impugned judgment
calling for an interference by this Court.
15. I shall first briefly refer to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
PW1/B, the FIS/FIR of PW1, prosecutrix, recorded on 01.08.2016,
reads thus: “My elder sister Kavita had gone to her in-laws’ house
in village Sunraha, District Darbhanga, Bihar about one year ago.
My jijaji (the accused), who lives in Ashok Nagar, Delhi, works as
a driver. He used to come to our house every Sunday in Shahpur
Jat to get his clothes washed. My mother (PW4) works as a maid.
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SHARMA
Signing Date:13.07.2026
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In the evening, when my mother is not at home, my jijaji comes to
our house. He had been forcibly establishing physical relations
with me for about last one year. He threatened to kill me and my
sister, Kavita, if I revealed the incident to anyone. During the
aforesaid period, my jijaji (the accused) has established relations
with me several times. A boy named Tinku (absconding accused)
used to live in our neighbourhood. For about one year, he also
used to forcibly take me to his room and establish relations. I told
my jijaji (the accused) about this matter. However, my jijaji (the
accused) did not take any action regarding this. I kept enduring
everything silently because my jijaji (the accused) used to threaten
me. Necessary action should be taken against my jijaji (the
accused) and my neighbour Tinku.
16. Ext. PX5 164 statement of PW1 is seen recorded on
02.08.2016, wherein she stated thus:- For the last one year, her didi
(elder sister) had been living in her village. Her mother (PW4)
leaves for work in the morning and returns in the evening. Her
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SHARMA
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jijaji (the accused) used to come to their house sometimes from the
office to get his clothes washed, and then he used to do galatkaam
with her. The accused used to kiss her, take off her clothes, and
have sex. The accused used to come on Saturdays and Sundays. A
boy named Tinku (absconding accused) used to live near her
house, who had also been doing galat kaam with her. She told the
accused about Tinku, however, the latter did not take any action.
She did not tell her family about the acts of the accused out of fear.
The accused used to threaten her that if she told anyone at her
home, he would assault/kill her and her family members as well.
17. PW1 when examined deposed that she had not attended
school. She was residing with her mother and brother at Shahpur
Jat, New Delhi. There were four brothers and sisters in the family.
Her elder sister, Kavita, was residing separately at some distance.
Her jija (the accused) was working as a driver and was residing in
Noida. A boy, namely, Tinku, was residing in their neighbourhood.
Tinku used to have sexual intercourse with her by forcibly
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SHARMA
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inserting his penis into her vagina against her wishes. She had
made a complaint to her jija (the accused), who informed her
mother (PW4), and thereafter her mother (PW4) informed the
police. Her jija did not usually visit their house and only came
when her mother was present. The police took her to the Child
Welfare Committee (CWC), where she narrated the incident and
her thumb impressions were obtained. Thereafter, she was sent to
Courage and Helping Home and was subsequently taken to a
hospital for medical examination. After examination, the doctor
informed her that she was pregnant. She had informed the doctor
that the child had been fathered by Tinku. She had given birth to a
male child. She had not signed any medical documents in the
hospital. She identified the accused as her jija. PW1 deposed that
the accused was in jail because he had established sexual relations
with her with her consent, and her mother (PW4) had lodged a
complaint against him. The accused had sexual relations with her
two or three times with her consent, and she became pregnant as a
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SHARMA
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result. PW1 admitted giving Ext. PW1/A 164 statement. However,
she denied her signatures on the document. No police official met
her at the hospital or in connection with the present case, and she
did not give any statement to the police. She did not wish to state
anything further except that the accused had established sexual
relations with her with her consent and that she had made the 164
statement under pressure from her sister, who was opposed to the
relationship.
17.1 The prosecutor is seen to have requested permission of
the trial court to “cross-examine” PW3 on the ground that she had
resiled from her previous statement. Permission was granted by the
trial court. On further examination, PW1 deposed that the accused
was residing elsewhere and was employed as a driver. The accused
used to visit their house every Sunday to get his clothes washed.
Her mother (PW4) worked as a housemaid and used to leave the
house at about 7:00 a.m., return at about 2:00 p.m., again leave at
about 4:00 p.m., and return by about 7:00 p.m. The accused used
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to come to the house at different times. She could not recall when
her sister had married the accused but estimated that the marriage
had taken place about fifteen years earlier, when she herself was
about five or six years old. She had never attended school except
that, after coming to Delhi from her village about seven years
earlier, her mother had got her admitted to the first standard. She
could not recall when the accused established sexual relationship
with her for the first time. When asked if she had considered that
her conduct might spoil her sister’s family life, she replied, “mujhe
tab yeh samajh nahi thi.” The sexual relationship between her and
the accused continued for about a year. Tinku had forcibly
established sexual relations with her. She was unaware that she
would conceive by having sexual relationship with the accused and
reiterated, “mujhe is baat ki samajh nahi thi.” Her mother (PW4)
had noticed that she had become pregnant. She did not inform the
accused about it because she was afraid. She denied the suggestion
that the accused had threatened to kill her and her sister if she
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disclosed their relationship. She admitted that the police had
arrested the accused, but she was unaware of the reason for his
arrest. She admitted that she had appeared before the Magistrate
and had signed the statement recorded before her. She admitted her
signature on Ext. PW1/A 164 statement. She admitted that the
accused had gone to jail based on her statement and that she did
not want the latter to remain in jail. She was deposing truthfully
before the court, and that her earlier statement had been made
under pressure from her sister. She had never informed the police,
the court, or any other authority that her earlier statement had been
made under pressure from her sister. She denied the suggestion
that the accused had established sexual relations with her forcibly
or by threatening her. Her sister was residing with them. She
denied the suggestion that she was concealing the fact regarding
forceful sexual intercourse because she wished to save the
matrimonial home of her sister and the accused.
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SHARMA
Signing Date:13.07.2026
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17.2 PW1 in her cross-examination deposed that she was
about 19 years old when she first established sexual relations with
the accused. She admitted that she had attended school only for
two or three days before dropping out due to financial constraints.
She admitted that she had left school because she appeared/looked
much older than her classmates. She denied the suggestion that she
had been 13-14 years old at the time of her admission in school.
She admitted that her age recorded in the school was less than her
actual age. She admitted that she had made her statement before
the Magistrate under pressure from her sister. She admitted that the
police had recorded her statement on the basis of which the crime
had been registered and that she had given the said statement under
pressure from her sister.
18. PW4, the mother of PW1, deposed that she has three
daughters and one son. Her two daughters were married, and her
elder daughter was married to the accused. She was working as a
domestic worker, whereas the accused was employed as a driver.
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SHARMA
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The accused used to visit their house to get his clothes cleaned.
Since she was working, she was generally not present at home. On
05.07.2016, she came to know that her younger daughter (PW1)
was pregnant. She, along with her daughter (PW1), went to the
house of her employer and narrated the entire incident. Her
daughter (PW1) disclosed that she had become pregnant by her jija
(the accused). PW4 deposed that PW1 had consensually made
physical relations with the accused. Thereafter, her employer
contacted a lady from an NGO, who took both of them to the
CWC, Lajpat Nagar. On 01.08.2016, the police recorded the
statement of her daughter (PW1) and she was medically examined
at AIIMS. Her daughter (PW1) had also disclosed that one boy,
namely Tinku, who was residing in the same building, had forcibly
established physical relations with her. Tinku had vacated the
premises prior to the registration of the FIR. A site plan was
prepared at the instance of her daughter. The accused had left
Delhi and gone to Bihar about two to three months before they
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came to know about the pregnancy of her daughter (PW1). PW1
had delivered a baby. She identified the accused before the trial
court.
18.1 PW4 in her cross-examination admitted that PW1 had
disclosed to her that she had established physical relations with the
accused with her consent. At the time of admission of her daughter
(PW1) in school, her actual age was about 18 years, whereas at the
time of her deposition, she was about 20 years old. She had her
daughter’s (PW1) age recorded as 06 years in the school records
because the school teacher had refused to admit her unless her age
was shown as six years.
19. PW6, Principal, Nagar Nigam Pratibha Girls School,
Shahpur Jat, New Delhi, was examined to prove the age of PW1.
She produced the original admission record of PW1. According to
PW6, PW1 had been admitted to the school based on Ext. PW6/A
application/registration form. As per the admission and withdrawal
register produced by her, PW1 had been admitted to the first
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standard and her admission entry was recorded at Serial No. 6334
in the admission register. The copy of the relevant page of the
admission register containing the admission entry of PW1 was
marked as Ext. PW6/B. As per the school records, the date of birth
of PW1 is 08.03.2004. The then in-charge (Admission) of the
school issued Ext. PW6/C certificate regarding PW1’s date of birth
and had handed over the same to the Investigating Officer (IO)
during the course of the investigation.
19.1. PW6 in her cross-examination admitted that no
document(s) relating to the birth of PW1 had been submitted by
her parents at the time of admission. At the relevant time, it was
the routine practice of the school to record the date of birth of
students on the basis of the version given by their parents. PW6
deposed that she had not personally verified the date of birth of
PW1. She admitted that she could not say whether the parents of
any student had disclosed the age of the student on the lower side
at the time of admission.
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20. The prosecution relies upon the school records
produced by PW6, the Principal of Nagar Nigam Pratibha Girls
School, to establish that PW1’s date of birth is 08.03.2004. As per
Ext. PW6/B admission register, PW1 would have been about 12
years old at the time of registration of the FIR. PW6 admitted in
her cross-examination that no birth certificate or any other
document relating to the birth of PW1 had been produced at the
time of admission. She further admitted that the date of birth was
recorded solely on the basis of the version furnished by the parents
and that she had not personally verified the date of birth. PW6 also
conceded that she could not say whether parents had disclosed the
age of the student on the lower side at the time of admission. Thus,
the school records are not based on any certificate or document.
Ext. PW6/C certificate is obviously inadmissible as it is a
certificate given by the school authority to the investigating officer
(IO) during the course of investigation. The same can only be
treated as a statement given in writing by a witness to the IO
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during the course of investigation and hence, a statement under
Section 161 Cr.P.C. Therefore, it is hit by Section 162 Cr.P.C. and
so is not admissible in evidence and hence is liable to be discarded
(See Sasi v. State of Kerala 2019 KHC 465: 2019 (3) KLT
561).[ See also Kali Ram v. State of H.P., 1973 KHC 634:1973
(2) SCC 808; Kanu Ambu Vish v. State of Maharashtra, 1971
KHC 469: 1971 (1) SCC 503; Datar Singh v. State of Punjab,
1975 KHC 789 : (1975) 4 SCC 272 and C. Chenga Reddy v.
State of A.P., 1996 KHC 1264 : 1996 (10) SCC 193].
21. More importantly, PW4, the mother of PW1,
substantially undermined the reliability of the school records. She
deposed that at the time of admission of PW1 in school, her actual
age was about 18 years and that she got PW1’s age recorded as 6
years because the school teacher had refused admission unless her
age was shown as six years. This testimony of the mother is
apparently a false statement as rightly found by the trial court
because a perusal of Ext. PW6/A, which also contain the
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photograph of PW1, shows that PW1 at the time of admission was
indeed a young child and certainly not 18 years as claimed by the
mother before the trial court. But in the light of the testimony of
the mother, doubts do arise about the actual age of PW1. Though
PW1 certainly was not 18 years, as claimed by her mother, at the
time of admission in the school, there is no clear or cogent material
on record regarding her actual age also.
22. PW1 deposed before the trial court that she was a major
at the time of the incident. She has a further case that she left
school because she appeared much older than her classmates and
admitted that her age recorded in the school was less than her
actual age. The prosecution did not produce any birth certificate,
municipal record, hospital record, or any other independent
document to corroborate the date of birth entered in the school
register. The only source for the entry was the statement of the
parent, and that very parent, namely PW4, admitted that the age
entered in the school records is incorrect. Therefore, the
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prosecution has failed to prove beyond reasonable doubt that PW1
was a minor at the relevant time.
23. The trial court has convicted the accused for the
offences punishable under Section 376(2) IPC and Section 6 of the
PoCSO Act. Since it has not been proved that PW1 was a minor on
the date of the incident, the conviction under Section 6 of the
PoCSO Act cannot be sustained and is liable to be set aside.
Further, PW1 repeatedly claimed before the trial court that it was a
consensual sexual relation. She also denied the prosecution’s
suggestion that the accused had established sexual relations
forcibly or by threatening her and specifically denied that the
accused had threatened to kill her or her sister if she disclosed the
relationship. Therefore, the prosecution case of rape as defined
under Section 375 IPC has not been made out and hence his
conviction under Section 376 IPC cannot be sustained.
24. In the light of the aforesaid, the appeal is allowed and
the impugned judgment by which the accused has been convicted
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SHARMA
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and sentenced for the offences punishable under Section 376(2)
IPC and Section 6 of the PoCSO Act is set aside. The accused is
acquitted under Section 235(1) Cr.P.C. of the offences punishable
under Section 376(2) IPC and Section 6 of the PoCSO Act. The
accused is set at liberty and his bail bond shall stand cancelled and
the sureties, if any, shall stand discharged.
25. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 13, 2026
kd
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Signed By:RAMAN
SHARMA
Signing Date:13.07.2026
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