Akeel Azhar @ Rinku vs State (Nct Of Delhi) on 28 July, 2026

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    Delhi High Court

    Akeel Azhar @ Rinku vs State (Nct Of Delhi) on 28 July, 2026

                              *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                              %                                    Judgment Reserved on: 22.07.2026
                                                                   Judgment pronounced on: 28.07.2026
    
                              +      CRL.A. 1144/2025 & CRL.M.A. 23761/2025
                                     AKEEL AZHAR @ RINKU                                  .....Appellant
    
                                                              Through:   Mr. Amitej Kumar Nagar, Advocate
    
    
    
                                                              Versus
    
                                     STATE (NCT OF DELHI)                                .....Respondent
                                                   Through:              Mr. Utkarsh, APP for State with SI
                                                                         Kevendra Singh
                                                                         Mr. Manish Sangwan, Advocate
                                                                         (DHCLSC) for Victim
    
    
                              +      CRL.A. 1272/2025 & CRL.M.A. 27206/2025
                                     SXX PXXX (MOTHER OF VICTIM)            .....Appellant
                                                  Through: Ms. Sanjana Gupta, Advocate
                                                           (DHCLSC) with Mr. Rakesh Tanwar,
                                                           Advocate
    
                                                              Versus
    
                                     THE STATE GOVT OF NCT DELHI & ANR.    .....Respondents
                                                  Through: Mr. Utkarsh, APP for State with SI
                                                            Kevendra Singh
    
    
                              CORAM:
                              HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
                                                              JUDGMENT
    

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 1 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05

    CHANDRASEKHARAN SUDHA, J.

    SPONSORED

    1. In these appeals filed under Section 415(2) of the

    Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 374(2) of the

    Code of Criminal Procedure, 1973 (Cr.P.C.)], accused nos. 1 and 2

    (A1 and A2) in Sessions Case No. 2227 of 2018 on the file of the

    Additional Sessions Judge (SC-POCSO), East District,

    Karkardooma Courts, New Delhi, assail the judgment dated

    30.01.2025 and order on sentence dated 14.02.2025 as per which

    A1 has been convicted and sentenced for the offences punishable

    under Sections 376(2), 323, 506 of the Indian Penal Code, 1860

    (the IPC) and Section 6 of the Protection of Children from Sexual

    Offences Act, 2012 (the PoCSO Act). A2 has been convicted and

    sentenced for the offences punishable under Section 6 read with

    Section 17 of the PoCSO Act and Section 376(2) read with Section

    109 IPC.

    2. The prosecution case is that, several times during the

    Signature Not Verified
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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    three years preceeding 10.08.2018, A1 criminally intimidated PW1

    to PW3, three minor girls aged between 02 to 08 years and

    repeatedly committed penetrative sexual assault. He threatened to

    beat them in case they disclosed the incidents to anyone. A1

    voluntarily caused hurt to the victims by beating them and

    repeatedly committed penetrative sexual assault on them. A2

    abetted and aided A1 in committing the penetrative sexual assault.

    Hence, as per the charge sheet/final report, A1 is alleged to have

    committed the offences punishable under Sections 376(2), 354 and

    323 IPC and Sections 6 and 10 of the POCSO Act. A2 is alleged to

    have committed the offences punishable under Sections 376(2)

    read with 109 IPC and Sections 6 read with 17 and 21 of the

    PoCSO Act.

    3. Based on Ext. PW1/B FIS of PW1, crime no. 384/2018,

    ShakarPur police station, that is, Ext. A4 FIR,was registered by

    PW5, Constable. PW13, Sub-Inspector, conducted investigation

    into the crime and on completion of the same, filed the

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    chargesheet/final report alleging the commission of the offences

    punishable under the aforementioned Sections.

    4. When A1 and A2 were produced before the trial court,

    all the copies of the prosecution records were furnished to them as

    contemplated under Section 207 Cr.P.C. After hearing both sides,

    the trial court, as per order dated 10.01.2019, framed a Charge

    under Sections 376(2), 506, 323 IPC and Section 6 of the PoCSO

    Act against A1 and under Section 6 read with Section 17 of the

    PoCSO Act and Section 376(2) read with Section 109 IPC against

    A2. The same was read over and explained to A1 and A2, to which

    they pleaded not guilty.

    5. On behalf of the prosecution, PWs.1 to 13 were

    examined and Exts. PW1/A-C, PW2/A, PW3/A-C, PW4/A-C,

    PW5/A, PW8/P1-P4, PW9/P1-P10, PW10/A-C, PW11/P1,

    PW13/B-D andA1-A8 were marked in support of the case.

    6. After the close of the prosecution evidence, A1 and A2

    were questioned under Section 313(1)(b) Cr.P.C. regarding the

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    incriminating circumstances appearing against them in the

    evidence of the prosecution. A1 and A2 denied all those

    circumstances and maintained their innocence. A1 submitted that

    he has been falsely implicated in the present case due to family

    disputes. He has not committed any offence, and the allegations

    made against him are false and baseless.

    6.1. A2 submitted that she has been falsely implicated in the

    present case and has not committed any offence as alleged herein.

    7. After questioning A1 and A2 under Section 313(1)(b)

    Cr.P.C, compliance of Section 232 Cr.P.C was mandatory. In the

    case on hand, no hearing as contemplated under Section 232

    Cr.P.C is seen made by the trial court. However, non-compliance

    of the said provision does not ipso facto vitiate the proceedings,

    unless omission to comply with the same is shown to have resulted

    in serious and substantial prejudice to the accused (See Moidu K.

    vs. State of Kerala, 2009 (3)KHC 89 : 2009 SCC OnLine Ker

    2888). Here, A1 and A2 have no case that non-compliance of

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    Section 232 Cr.P.C has caused any prejudice to them.

    8. On behalf of A1, DW1 was examined. No oral or

    documentary evidence was adduced on behalf of A2.

    9. On consideration of the oral and documentary evidence

    and after hearing both sides, the trial court, vide the impugned

    judgment dated 30.01.2025, convicted A1 for the offences

    punishable under Sections 376(2), 323 and 506(1) IPC and Section

    6 of the PoCSO Act, and A2 for the offences punishable under

    Section 109 read with Section 376(2) IPC and Section 6 read with

    Section 17 of the POCSO Act. By the order on sentence dated

    14.02.2025, A1 has been sentenced to rigorous imprisonment for a

    period of 12 years as well as fine of ₹25,000/- and in default of

    payment of fine, to rigorous imprisonment for six months for the

    offence punishable under Section 6 of the PoCSO Act; to rigorous

    imprisonment for 01 year as well as fine of ₹5,000/- and in default

    of payment of fine, to rigorous imprisonment for one month for the

    offence punishable under Section 506(1) of the IPC and to rigorous

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 6 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    imprisonment for 06 months as well as fine of ₹2000/- and in

    default of payment of fine, to rigorous imprisonment for 15 days

    for the offence punishable under Section 323 IPC. A2 has been

    sentenced to rigorous imprisonment for 10 years as well as fine of

    ₹10,000/- and in default of payment of fine, to rigorous

    imprisonment for six months for the offence punishable under

    Section 17 read with Section 6 of the PoCSO Act. The sentences

    have been directed to run concurrently. Aggrieved, A1 and A2

    have come up in appeal.

    10. It was submitted by the learned counsel appearing for

    the appellant/A1 that Ext. A7 FSL report says that no male DNA

    was detected, despite the prosecution case as revealed in Ext.

    PW1/B FIS/FIR being that A1 had sexually assaulted her on the

    morning of the report also. The attention of the Court was drawn to

    paragraphs 6 and 7 of the order on sentence dated 14.02.2025,

    which has recorded the statement of PW1 to the effect that neither

    A1 nor A2 had done anything wrong to her and that she had made

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    the allegations under the pressure of her class teacher. It was also

    pointed out that PW3, one of the victims when examined before

    the court has not supported the prosecution case. Although PW1

    deposed that she had seen A1 sexually assaulting her sisters, that

    is, PW2 and PW3, the testimony of PW3 does not corroborate the

    said allegation. Therefore, it is prayed that the impugned judgment

    of conviction and order on sentence be set aside and the

    appellant/A1 be acquitted.

    11. The learned counsel appearing for the appellant/A2

    quite persuasively argued that the trial court erred in convicting A2

    for abetment as contemplated under Section 17 of the PoCSO Act

    and Section 109 IPC. It was submitted that in order to sustain a

    conviction for abetment, the prosecution must establish intentional

    instigation, conspiracy or intentional aid, which has not been

    established by the prosecution. Mere knowledge of the act, in the

    absence of any active participation or intentional assistance, is

    insufficient to attract the liability under Section 17 of the PoCSO

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    CRL.As. 1144/2025 & 1272/2025 Page 8 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    Act and Section 109 IPC. Further, PW1 has given inconsistent

    versions in her earlier statements and testimony. In Ext. PW1/B

    FIS/FIR, PW1 stated that the incidents had taken place while she

    was studying in second standard, whereas, in her testimony, she

    deposed that the incidents continued during second, third and

    fourth standards. Therefore, the prosecution has failed to establish

    its case beyond reasonable doubt, and the appellant/A2 is,

    therefore, entitled to an acquittal. In support of the submissions,

    reliance was placed on the dictum of the High Court of Judicature

    at Madras dated 21.11.2023 in State Rep. By the Inspector of

    Police vs. XXX, R.T. No.2 of 2022 and Crl.A. Nos.427 and 392

    of 2023.

    12. Per contra, the learned Additional Public Prosecutor

    submitted that PW1 and PW2, the minor victims, have been

    consistent in their statements and testimony, which is further

    corroborated by the medical evidence. It was pointed out that Ext.

    PW1/A MLC of PW1 records that her hymen was torn, there was a

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    CRL.As. 1144/2025 & 1272/2025 Page 9 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    bite mark on her abdomen and tenderness was present. Further, the

    absence of detection of male DNA in Ext. A7 FSL report cannot

    be read against the ocular evidence of the victims. The biological

    samples were collected after a lapse of time and, therefore, the

    possibility of degradation or loss of DNA material, as also

    mentioned in the report itself, cannot be ruled out. It was further

    submitted that the expression “offence”, as defined under Section

    2(n) of the Code of Criminal Procedure, 1973, means any act or

    omission made punishable by any law for the time being in force.

    Once the law recognises an omission as capable of constituting an

    offence, the deliberate failure of A2 to discharge her legal duty to

    protect her minor daughters, despite repeated disclosures regarding

    the acts of A1, is capable of attracting the provisions relating to

    abetment by illegal omission under Section 16 of the POCSO Act.

    Therefore, the prosecution had proved the guilt of the appellants

    beyond reasonable doubt and that there is no infirmity in the

    impugned judgment calling for an interference by this court.

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 10 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05

    13. It was submitted by the learned counsel appearing for

    the victim/PW1 that PW1 had made the allegations under the

    influence and tutoring of her teacher, to whom she had initially

    reported the incident. It was submitted that PW1 now supports the

    case of the appellants/A1 and A2 and has stated that they had not

    committed any offence against her. It was, therefore, prayed that

    the impugned judgment of conviction and order on sentence be set

    aside and the appellants be acquitted.

    14. Heard both sides and perused the materials on record.

    15. The only point that arises for consideration in this

    appeal is whether the conviction entered and sentence passed

    against the appellants/A1 and A2 by the trial court are sustainable

    or not.

    16. I shall briefly refer to the oral and documentary

    evidence relied on by the prosecution in support of the case. Ext.

    PW1/B FIS/FIR of PW1 recorded in Hindi on 10.08.2018,

    translated reads thus: “I reside along with my three sisters, mother,

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    CRL.As. 1144/2025 & 1272/2025 Page 11 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    and father. My bua’s son (A1) also lives in our house, whom we

    address as bhaiya. Ever since I was studying in the second grade,

    bhaiya (A1), who lives with us, would take off my pajamas and lie

    on top of me, touching my private part with his hand (हाथ मे री शू-शू

    पर लगाते थे). Whenever I tried to tell my mother (A2) about this,

    she would dismiss my concerns by saying that he was my brother

    and that I should not say such things (ऐसे नहीं कहते वो भैया है ).

    Then one day, bhaiya (A1) took off his clothes as well as my

    clothes, lay on top of me, and inserted his private part into mine

    (मे रे ऊपर लेट गए और अपनी सु -सु मेरी सु-सु मे डाल िदया). I cried a

    lot. My mother (A2) had gone to the toilet at that time. When she

    returned, I told her about it, but she dismissed it by saying that I

    should not say such things about bhaiya (A1) and that I was lying.

    Bhaiya (A1) has done this to me four times, and he does the same

    with my mother as well. Today, when my father left at 05:00 a.m.

    and my mother went to the toilet, bhaiya (A1) again inserted his

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 12 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    private part into mine, after which I left for school. I told this

    incident to my teacher, Ayesha Khan Madam. Bhaiya (A1)

    behaves inappropriately with my sister as well.”

    17. In Ext. PW1/C 164 statement of PW1 recorded on

    14.08.2018, she has stated thus: Bhaiya (A1) behaves

    inappropriately with us. He removes his pants and touches us with

    his hand. He lies on top of us. He puts his private part into our

    private part and moves back and forth (अपना सु सु हमारे ऊपर डाल

    कर आगे पीछे होते है ). He tells us not to tell anyone. She told her

    mother (A2), but her mother (A2) did not say anything and said

    that it was okay. Bhaiya (A1) also beats us. He beats us with a

    stick. We told Ma’am who brought us there. Bhaiya (A1) said that

    if we told anyone about the incident, he would beat us severely. He

    also kisses us. He did the same to her sister also. He forces us by

    beating (मारकर करवाता है ).

    18. In Ext. PW2/A 164 statement of PW2 recorded on

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
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    14.08.2018, she has stated thus:- Bhaiya (A1) talks of bad things

    (भैया न गं दी बात करते थे ). He touches us and puts his hand where

    we urinate (हाथ डालते थे । यहाँ पर सु सु करते है न, वहाँ डालते थे ।). He

    used to do this to all three sisters. He also used to beat all three of

    us. He used to put his private part into her mouth, as well as into

    her sister’s (PW1) mouth. Fufu had sent him there. He is not our

    biological brother. He sleeps at fufu’s house.

    19. In Ext. PW3/A 164 statement of PW3 recorded on

    14.08.2018, she has stated thus:- When Rinku bhaiya (A1) bathes

    her, the former removes her underwear and clothes. After that, he

    touches her private parts with his hand.

    20. PW1 when examined before the trial court, stood by her

    version in the FIS/FIR and the 164 statement. She deposed that

    Rinku (A1) is the son of her fufu. She used to call him bhaiya.

    Rinku (A1) used to reside in their house and was working as a

    computer mechanic. On being asked as to what Rinku (A1) had

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    done to her, she answered that he raped her. When she was asked

    what she meant by rape, answered that – “Rinku (A1) used to

    remove my pajami and used to insert the finger inside my vagina.”

    The trial court has noted thus – “victim demonstrated by putting

    finger towards her utaras [sic] portion”. PW1 further deposed that

    Rinku (A1) also inserted his private part (susu wali jagah) inside

    her private part (susu wali jaga) and committed rape (wo apna

    neeche wala part mere under daak kar aage peeche karata thaa).

    Rinku (A1) also committed the aforesaid acts with her younger

    sisters also. Rinku (A1) did the aforesaid acts when she was in

    second, third and fourth grade. She did not disclose the act to

    anyone. One day, after everyone had eaten and were asleep, she

    heard a noise which woke her up. Her younger sister also woke up.

    She noticed that Rinku (A1) was having sexual intercourse with

    her mother. On noticing her, A1 went under the bed. She

    questioned the act of the accused. Rinku (A1) then put a towel

    around his lower portion as he was naked and stated that he pays

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    money for it and that he does the same with her as well (Main

    paise de kar karta hoon, main tere saath bhi kartaa hoon). Despite

    hearing A1, her mother (A2) did not respond or confront him.

    Rather, her mother (A2) told her that the former raises them using

    the money given by A1 (Inhi paison se to main tumhe paalti

    hoon). Rinku (A1) threatened her with a belt and told her that he

    would beat her if she disclosed the incident to anyone. Thereafter,

    they all went to sleep. In the morning when they woke up, her

    mother (A2) told her that it was okay and that people do such

    things (Koi nahi aise karte hain). Then life went on.

    20.1. One day at school, when she was in the fifth standard,

    her class teacher (PW6) was teaching them about good and bad

    touches and advising that if any wrong act is committed against

    children, they should report the matter to their parents and near

    ones. In the said class, her cousin sister (the daughter of her bua)

    who is also her classmate, asked her to disclose the sexual assault

    committed by Rinku (A1) to the teacher. After the awareness

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    program, she told her class teacher (PW6) that she wanted to

    discuss certain facts with her. Thereafter, while the class was going

    on, her teacher called her and asked what she wanted to disclose.

    She then disclosed the entire incident to her teacher. Her teacher

    told her that she would get the perpetrator punished and also asked

    her not to tell anyone that she had disclosed the incident to her.

    One day, while she was in class, her class teacher took her to the

    Principal’s room, where police officers were already present. She

    narrated the entire incident to the police. Thereafter, the police

    took her to the hospital, where her medical examination was

    conducted. The police also recorded her statement. From the

    hospital, she was taken to Sanskar Ashram.

    20.2. The prosecutor sought permission of the trial court to

    put leading questions to PW1. The same was allowed. On being

    asked if she knew Alina Khan, PW1 answered that when she had

    told her class teacher about the incident, her class teacher called

    Alina Khan Madam, who also made inquiries with her.

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05

    20.3. PW1 in her cross-examination, deposed that Rinku

    (A1) used to give his salary to her mother (A2). She denied the

    suggestion that her grandmother and her mother (A2) used to

    quarrel often. Once, she had told her buaji about the assault by

    Rinku (A1), but her buaji never confronted Rinku (A1) about it.

    PW1 denied frequent quarrels between her parents. She had once

    noticed a quarrel between them. She had not told her father about

    the incident. The quarrel between her parents took place when the

    police had been called to the school (Jab bhaiya karte they tab

    mere saath tab jhagada hua thaa). She denied the suggestion that

    she complained against Rinku (A1) as tutored by her father and

    dadi. PW1 admitted that, on one occasion, a quarrel had taken

    place between Rinku (A1), her mother (A2), and her father over

    money, as her mother (A2) had kept as savings the money given to

    her by Rinku (A1), while she gave a portion of the money received

    from her father to Rinku (A1). PW1 further deposed that her father

    is “slightly mentally weak”. According to PW1, she had witnessed

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
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    Rinku (A1) sexually assaulting her younger sisters (PW2 and

    PW3). She denied the suggestion that as her father did not want to

    return Rinku’s (A1) salary, the false implication has been made.

    PW1 admitted that neither of her sisters had complained to their

    mother (A2) regarding the sexual assault by A1. When she had

    informed her mother (A2) about the sexual assault committed by

    A1, her youngest sister (PW3) was asleep, but her younger sister

    (PW2) was awake. Her buaji showed no reaction and kept mum

    when the assault was disclosed to her. She told her buaji’s

    daughter, who was her classmate, about Rinku’s (A1) actions after

    the first incident of sexual assault. Her cousin sister then disclosed

    Rinku’s actions to her dadi.

    21. PW2 when examined before the trial court, deposed

    that AkilAzhar @ Rinku (A1), son of her phuphu used to do bad

    things to her. On being asked what bad things he had done, she

    answered that A1 used to touch her inappropriately / put his hands

    on her. The trial court recorded its observation thus – “At this

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    stage, witness (PW2) pointed towards her lower private part in

    order to show where the accused (A1) used to put his hand”.

    Rinku (A1) used to remove her clothes, and then touch her. Rinku

    (A1) used to hit her on the head with a pan used for making rotis

    and threatened to break her head. Rinku (A1) used to do the same

    acts on both her sisters as well as her bua’s daughter. Rinku (A1)

    used to put his private part into their mouths. Rinku (A1) did the

    aforesaid acts several times during night while they were asleep.

    When she and her sister initially informed their dadi and mother

    (A2) about the assault, her dadi dismissed it as a joke while her

    mother (A2) remained silent and took no action. They disclosed

    the incident to a teacher in their school. The teacher called the

    police, after which a female police officer took them for medical

    examination. Thereafter, they were taken to ashram, where they

    have been residing since.

    21.1. PW2 in her cross-examination, deposed that Rinku

    (A1) used to give ₹10/- to ₹20/- to her younger sister (PW3).

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    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
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    Rinku (A1) also used to give money to her mother (A2), while her

    father saved money in a piggy bank rather than handing it directly

    to her mother. She denied frequent quarrels between her father and

    Rinku (A1). Her mother met their school expenses. PW2 denied

    having complained to her teacher as instructed by someone else

    and clarified that they had complained voluntarily, without being

    instructed by anyone. PW2 admitted that her mother (A2) loved

    her.

    22. PW3 deposed that Rinku bhaiya (A1) did not do

    anything inappropriate to her or touch her private parts. She

    admitted that she used to bathe with Rinku bhaiya (A1) and that

    the latter lived in their house. The police took Rinku bhaiya (A1)

    away. She denied that she was taken to the hospital by the police.

    While she admitted appearing before a judge, she denied the judge

    asking her as to what had happened or having told the judge about

    the incident. She denied disclosing the incident to her mother (A2).

    She denied having been instructed by her dadi not to say anything

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 21 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    against Rinku bhaiya (A1).

    23. PW10, then Senior Resident, Gynaecology Department,

    LBS Hospital, deposed that on 10.08.2018, she conducted medical

    examination of the victims (PW1 to PW3). On obtaining consent,

    an internal examination of PW1 was conducted which revealed the

    tear on the hymen was old. There was slight tenderness. She had

    examined the other victims (PW2 and PW3) also. But their bua

    refused internal medical examination. On local examination of the

    genitals of both the victims (PW2 and PW3), the hymen was found

    intact.

    23.1. PW10 in her cross-examination, admitted that hymen

    can be torn due to reasons other than sexual assault. PW10

    admitted that tenderness could be caused by an injury but no

    physical injury was visible on local examination. She denied the

    suggestion that she had prepared the MLCs at the instance of the

    Investigating Officer (PW9).

    24. I will also refer to the testimony of the defence witness

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 22 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    examined on behalf of A1. DW1 deposed that Akeel Azhar (A1),

    his cousin brother, was residing with his family at the time of the

    incident. DW1 in his cross-examination, denied the suggestion that

    A1 was residing with co-accused (A2). He admitted that he

    possessed no documentary proof to establish his relationship with

    A1 or proof that A1 had ever resided with him.

    25. A1 stands convicted for the offences punishable under

    Sections 376(2), 323 and 506(1) IPC and Section 6 of the POCSO

    Act. The principal question that arises for consideration is whether

    the evidence adduced by the prosecution establishes these offences

    against A1 beyond reasonable doubt.

    26. The prosecution case substantially rests upon the

    testimony of PW1 and PW2 as well as the medical evidence.

    Section164 statements of PW1, PW2 and PW3 are substantially

    consistent and corroborate each other on the material particulars of

    the prosecution case, particularly with regard to the repeated acts

    of penetrative sexual assault committed by A1, criminal

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    CRL.As. 1144/2025 & 1272/2025 Page 23 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    intimidation and causing hurt to them. PW1 and PW2 entered the

    box and reiterated all the material particulars and the allegations

    made in their Section 164 Cr.P.C. statements. But, PW3, the

    youngest of the sisters, did not support the prosecution case during

    trial. However, this fact does not dilute the evidentiary value of the

    testimony of PW1 and PW2. The absence of corroboration from

    PW3 also does not affect the credibility of PW1 and PW2

    regarding the offences committed against them or the incidents

    witnessed by PW1. Further, it is settled law that the sole testimony

    of a victim can be relied upon to decide a case of sexual assault,

    provided it is clear, trustworthy and reliable. As held in Ganesan

    v. State, (2020) 10 SCC 573 and State (NCT of Delhi) v. Pankaj

    Chaudhary, (2019) 11 SCC 575, a conviction can be sustained on

    the sole testimony of the prosecutrix if it inspires confidence, and

    there is no rule of law or practice that the evidence of the

    prosecutrix cannot be relied upon without corroboration. The

    testimony of PW1 and PW2 is clear, cogent and corroborates each

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    CRL.As. 1144/2025 & 1272/2025 Page 24 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    other. I, therefore, find no reason to reject or discard the testimony

    of PW1 and PW2.

    27. The inconsistencies highlighted by the learned counsel

    for A1, namely, whether A1 used to sleep in the house of PW1 or

    at the house of the bua, and whether the incident occurred when

    PW1 was in second grade or whether it continued for three years

    from the second standard till fourth standard, are not such that

    would strike at the root of the prosecution case or that would affect

    the core allegation of aggravated penetrative sexual assault. These

    discrepancies are natural, considering that the incidents had

    occurred when PW1 to PW3 were between 5 and 10 years of age

    and the testimony was recorded after almost an year from the date

    of registration of the FIR. It would be unrealistic to expect a child

    witness to recollect every date, the sequence and details with

    mathematical precision after a lapse of time. Moreover, in the

    FIS/FIR, PW1 has stated that since the time she was in the second

    standard, the accused had been assaulting her (जब म दू सरी ास म

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 25 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    पढ़ती थी तो तब से जो भैया घर म रहते ह मेरी पाजामी उतारकर अपने

    आप मे रे ऊपर ले ट जाते थे …….). So, the argument advanced by the

    learned counsel for A2, that there is inconsistency between the

    versions of PW1 in the FIS/FIR and in the box is incorrect. On the

    other hand, the case of PW1 is that the accused has been sexually

    assaulting her from the time she was in the second standard.

    28. Ext. PW1/A MLC of PW1 also supports the

    prosecution case. On examination, no fresh injury was noticed

    over the external genitalia. It is true that the tear in the hymen was

    found to be old. But tenderness was seen. This supports the version

    of PW1 that on the date of reporting also she had been sexually

    assaulted. It is true that PW10, the doctor in the cross-examination

    admitted to a suggestion put on behalf of the defence that hymen

    can be torn for reasons other than sexual assault. Suggestions made

    to the doctor and admissions made thereon are not proof of a fact

    and based on that admission, the court cannot arrive at a

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    CRL.As. 1144/2025 & 1272/2025 Page 26 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    conclusion. Over dependence on such opinion evidence, even if

    the witness is an expert in the field, to checkmate the direct

    testimony given by an eyewitness is not a safe modus adoptable in

    criminal cases. It has now become axiomatic that medical evidence

    can be used to repel the testimony of eyewitnesses only if it is so

    conclusive as to rule out even the possibility of the eyewitness’s

    version to be true. A doctor usually confronted with such questions

    regarding different possibilities or probabilities of causing those

    injuries or post-mortem features which he noticed in the medical

    report may express his views one way or the other depending upon

    the manner the question was asked. But the answers given by the

    witness to such questions need not become the last word on such

    possibilities. After all he gives only his opinion regarding such

    questions. But to discard the testimony of an eyewitness simply on

    the strength of such opinion expressed by the medical witness is

    not conducive to the administration of criminal justice. Similar

    view has also been expressed in Mange v. State of Haryana

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 27 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    (1979) 4 SCC 349; State of U.P. v. Krishna Gopal, AIR 1988

    SC 2154 ; Ram Dev v. State of U.P. (1995) Supp. (1) SCC 547;

    State of U.P. v. Harban Sahai, (1998 6 SCC 50 and Ramanand

    Yadav v. Prabhu Nath Jha (2003) 12 SCC 606 and Ram

    Swarup vs. State of Rajasthan, AIR 2008 SC 1747.

    29. It was submitted by the learned counsel for the

    appellant/A1 that the absence of detection of male DNA on the

    clothes of PW1 as recorded in Ext. A7 FSL report, despite the

    prosecution allegation that PW1 had been subjected to penetrative

    sexual assault by A1 on the very same morning, is inconsistent

    with the prosecution case and creates reasonable doubt. The non-

    detection of male DNA by itself does not demolish the prosecution

    case. As pointed by the learned APP, possibility of degradation or

    loss of biological material as noted in the report, cannot be ruled

    out.

    29.1. Further, the medical and forensic evidence admissible

    under Section 45 of the Indian Evidence Act, 1872 can only

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    CRL.As. 1144/2025 & 1272/2025 Page 28 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    corroborate the testimony of the witness. The purpose of an expert

    opinion is primarily to assist the court in arriving at a final

    conclusion. Such report is not binding upon the court. The court is

    expected to analyse the report, read it in conjunction with the other

    evidence on record and then form its final opinion as to whether

    such report is worthy of reliance or not. The assistance and value

    of expert opinion is indisputable, but there can be reports which

    are, ex facie, incorrect or deliberately so distorted as to render the

    entire prosecution case unbelievable. But if the eyewitnesses and

    other prosecution evidence are trustworthy, have credence and are

    consistent with the eye-version given by the eyewitnesses, the

    court will be well within its jurisdiction to discard the expert

    opinion. An expert report, duly proved, has its evidentiary value

    but such appreciation has to be within the limitations prescribed

    and with careful examination by the court. A complete

    contradiction or inconsistency between the medical evidence and

    the ocular evidence on the one hand and the statement of the

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    CRL.As. 1144/2025 & 1272/2025 Page 29 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    prosecution witnesses between themselves on the other, may result

    in seriously denting the case of the prosecution in its entirety but

    not otherwise (See Dayal Singh v. State of Uttaranchal, (2012) 8

    SCC 263).

    30. I have also gone through paragraphs 6 and 7 of the

    order on sentence dated 14.02.2025 wherein PW1/victim is stated

    to have expressed that she had made the allegations under the

    influence of her class teacher. During the course of oral arguments,

    the learned counsel appearing for the victim/PW1 submitted that

    the counsellor had tutored the victim/PW1 to speak against her

    mother (A2) and brother (A1).

    31. The class teacher of PW1 was examined as PW6. PW6

    deposed that in August 2018, an MCD counsellor visited the

    school to conduct a session, during which PW1 disclosed that she

    was being sexually harassed at home by a relative. The counsellor

    subsequently informed her department regarding the harassment.

    On 10.08.2018, the police officers visited the school and recorded

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 30 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    the statements of the victim (PW1) and her two younger sisters

    (PW2 and PW3), who were studying in the third class and nursery

    respectively. She had accompanied the victims and the police to

    the LBS Hospital, where the medical examinations were conducted

    in the presence of the children’s dadi. PW6 in her cross-

    examination admitted that the victims (PW1 to PW3) had not

    disclosed anything to her prior to the counselling session and that

    the session had not been conducted to investigate sexual

    harassment among students.

    32. A careful perusal of the testimony of PW6 shows that

    no case of tutoring PW1 to PW3 was ever put to her during her

    examination. Not even a suggestion was put to her on behalf of

    either A1 or A2 that she had tutored, influenced or prompted the

    victims to falsely implicate A2, their mother, or A1. On the

    contrary, her testimony indicates that PW1, the eldest child among

    the three victims, disclosed the incident after attending the

    counselling/awareness sessions. This is not an unnatural

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    CRL.As. 1144/2025 & 1272/2025 Page 31 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    circumstance, considering that the victims were of tender age and

    may not have fully understood the nature of the acts committed

    upon them or that such acts constituted offences. This is especially

    so in the case on hand because PW1 and PW2 despite informing

    A2, who is none other than their own mother, as well as their dadi

    of the sexual assaults, the latter dismissed the complaints of the

    young girls as a joke. Infact, according to PW1, her mother (A2)

    responded by saying that it was okay and that people do such

    things. PW1, a girl of tender age at the time of the incident seemed

    to have had the misfortune of seeing the intimate scenes between

    her mother (A2) and A1, the person who abused her. The girls

    never realised that they were being abused by A1 until PW1

    attended the awareness classes. They must have thought that the

    acts were normal when their own mother responded by saying –

    “Koi nahi aise karte hain”. The contention that the victims were

    tutored, having never been put to PW6 during trial, appears to be a

    clear afterthought. Such a case is not put forward even when A1

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    CRL.As. 1144/2025 & 1272/2025 Page 32 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    and A2 were questioned under Section 313(1)(b) Cr.P.C. Further, a

    subsequent retraction at the stage of sentencing, unsupported by

    any materials on record, cannot demolish the substantive evidence

    recorded during trial. The correctness of the conviction has to be

    examined on the basis of the evidence or materials adduced during

    trial. Accepting the statement of PW1 as seen recorded in

    paragraph 6 of the order on sentence, would amount to making a

    mockery of the criminal justice system, which cannot be allowed

    at any cost. The trial court has rightly rejected the same. I refrain

    from taking or recommending any action against PW1 in the light

    of her young age. A2 is none other than her mother. Her father is

    no more. According to PW1, it is her grandmother and bua who

    are taking care of her as well as her sisters. Therefore, one can

    certainly understand the pressure PW1 must have been put to by

    the family members to retract her earlier statement.

    33. Further, the testimony of DW1 does not advance the

    defence case in any material particular. At best, it seeks to

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    CRL.As. 1144/2025 & 1272/2025 Page 33 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    establish that A1 was residing with DW1 and that he was

    apprehended from the factory instead of the place alleged by the

    prosecution. The place of arrest is not a fact in issue nor does it

    have any bearing on whether the offences alleged against A1 were

    committed. Even assuming his version regarding the place of arrest

    to be correct, it does not affect the prosecution evidence

    concerning the commission of the offences. Consequently, the

    evidence of DW1 does not create any reasonable doubt in the

    prosecution case and is of no material assistance to the defence.

    Accordingly, the conviction of A1 for the offences punishable

    under Sections 376(2), 323 and 506(1) IPC and Section 6 of the

    POCSO Act warrants no interference.

    34. Coming to the conviction of A2 under Section 6 read

    with Section 17 of the PoCSO Act and Section 376(2) read with

    Section 109 IPC. The primary argument raised by the learned

    counsel for the appellant/A2 is that mere knowledge of the

    commission of an offence would not attract either Section 17 of

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 34 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    the POCSO Act or Section 109 IPC and that there must be

    evidence of intentional aid, instigation or active facilitation.

    35. Section 16 of the POCSO Act which defines abetment

    says that a person abets an offence if he or she (i) instigates any

    person to commit the offence; (ii) engages in a conspiracy for the

    commission of the offence, followed by an act or illegal omission

    in pursuance thereof; or (iii) intentionally aids, by any act or illegal

    omission, the commission of the offence. Explanation II to Section

    16 further clarifies that a person who, either prior to or at the time

    of the commission of the act, does anything in order to facilitate

    the commission of that act, and thereby facilitates its commission,

    is said to aid the doing of that act. The prosecution seeks to bring

    the conduct of A2 within the ambit of clause thirdly of Section 16,

    namely, intentional aid by illegal omission. According to the

    learned counsel for A2, the prosecution in order to succeed under

    clause (iii) of Section 16 of the PoCSO Act must prove that A2,

    the mother, had intentionally aided the commission of the offence

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    CRL.As. 1144/2025 & 1272/2025 Page 35 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    by A1, which has not been done in this case. Reliance has been

    placed on the dictum in State v. XXX (supra) in support of the

    argument.

    36. In the aforesaid case, the accused persons were the

    father (A1) and mother (A2) of the victim. The prosecution case

    was that on several occasions A1 had committed penetrative

    sexual assault on his minor daughter ever since she was 7 years

    old. When the victim informed the assault to her mother (A2), the

    latter did not care to take any action. Due to repeated penetrative

    sexual assault, the victim child became pregnant. The victim

    informed her teacher about the incidents and thereafter, the law

    was set into motion. The trial court convicted and sentenced A1

    under Section 6 of the PoCSO Act, Section 75 of the Juvenile

    Justice (Care and Protection of Children) Act, whereas A2 was

    convicted and sentenced under Section 6 read with Sections 17, 21

    of the PoCSO Act and Section 75 of the JJ Act.

    36.1. The judgment of conviction and sentence was

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    CRL.As. 1144/2025 & 1272/2025 Page 36 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05
    challenged before the High Court. Upon reappreciation of the

    evidence, the High Court affirmed the conviction of A1 for the

    offences punishable under the aforementioned Sections. However,

    insofar as A2 was concerned, the High Court observed that the

    evidence on record did not show that A2 had any intention to aid

    A1 in committing the sexual offences. Infact, it was found that A2

    had protested at every stage, and A1 had abused and beaten A2,

    besides intimidating her with dire consequences. Therefore, it was

    held that her knowledge of the illegal acts and her omission to

    prevent it or complain about it would not amount to “intentional

    aiding”. It was thus held that the prosecution had failed to establish

    the ingredients of abetment as contemplated Section 17 of the

    PoCSO Act. Nevertheless, the High Court found that A2 had failed

    to report the commission of the offence despite being aware of it

    and had exposed the child to mental and physical suffering.

    Accordingly, her conviction under Section 21(1) of the POCSO

    Act and Section 75 of the JJ Act was upheld.

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    CRL.As. 1144/2025 & 1272/2025 Page 37 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05

    37. The present case stands on an entirely different footing.

    A2 is not a stranger, acquaintance or any family member, but the

    mother of the victims who had the parental and legal duty to

    protect her children. According to PW1, the repeated acts of

    penetrative sexual assault were committed by A1 while he was

    residing in their house. PW1 deposed that she had informed her

    mother (A2), about the acts committed by A1. Instead of

    protecting her minor daughters or taking any preventive or

    remedial steps, A2 dismissed the complaints, told PW1 not to

    make such allegations against A1 and continued permitting A1 to

    continue residing in the house, thus exposing the minor children to

    further abuse. PW1 has further deposed that A2 justified the

    conduct of A1 and did not intervene despite being repeatedly

    informed. The continued omission of A2 cannot be viewed as mere

    passive knowledge but would certainly come within the expression

    “intentionally aids by illegal omission” coming in clause (iii) of

    Section 16 of the PoCSO Act.

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 38 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05

    38. In the light of the aforesaid discussion, the findings of

    guilt recorded by the trial Court for the offences punishable under

    Sections 376(2), 323, 506 IPC and Section 6 of the PoCSO Act

    against A1 and Section 6 read with Section 17 of the PoCSO Act

    and Section 376(2) read with Section 109 IPC against A2, are

    proved beyond reasonable doubt and suffer from no infirmity

    warranting an interference by this Court.

    39. The appeals, sans merit, are dismissed.

    40. Application(s), if any, pending, shall stand closed.

    CHANDRASEKHARAN SUDHA
    (JUDGE)

    JULY 28, 2026
    rs/p’ma

    Signature Not Verified
    CRL.As. 1144/2025 & 1272/2025 Page 39 of 39
    Signed By:RAMAN
    SHARMA
    Signing Date:28.07.2026
    14:22:05



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