Delhi High Court
Amit vs State on 23 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 18.02.2026
Judgment pronounced on: 23.02.2026
+ CRL.A. 173/2020
AMIT .....Appellant
Through: Mr. Adit S. Pujari, Advocate
(DHCLSC) with Mr. Bhavesh Seth,
Advocate
versus
STATE .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Geetam Singh.
Mr. Vaibhav Tomar, Ms. Heena
Khan, Mr. Prabhjot Singh Dhillon and
Mr. Hriman Dhaka, Advocates for
Prosecutrix
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 374(2) read with Section 383 of
the Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed
by accused no. 1(A1) in Sessions Case No. 1653/2016 (Old Case
No. 169/2013) on the file of Additional Session Judge-01,
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(POCSO), South-East District, Saket Courts, New Delhi, assailing
the judgment dated 04.10.2019 and order on sentence dated
18.10.2019 as per which he has been convicted and sentenced for
the offences punishable under Section 376 of the Indian Penal
Code, 1860 (the IPC) and Section 4 of the Protection of Children
from Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 24.07.2013 at about 04:00
pm, A1 and accused no. 2 (A2), in furtherance of their common
intention, kidnapped PW5 and PW9 from their lawful guardianship
and took them to Suratgarh, Rajasthan, where A1 committed
penetrative sexual assault on PW5. It is also alleged that accused
no. 3 (A3) wrongfully confined PW5 and PW9 at his house and
abetted the commission of the penetrative sexual assault. Hence,
the accused persons are alleged to have committed the offences
punishable under Sections 363, 366A, 368, 376 read with 34 IPC
and Sections 4 and 17 of the PoCSO Act.
3. On the basis of Ext. PW1/A FIS of PW1, given on
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25.07.2013, Crime No. 244 of 2013, Badarpur Police Station, that
is, Ext. PW16/A FIR was registered by PW16, Assistant Sub
Inspector. PW17 conducted investigation into the crime and on
completion of the same, filed the charge-sheet/final report before
the court, alleging the commission of the offences punishable
under the aforementioned Sections.
4. When the accused persons 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 two separate orders dated
21.11.2013, framed a Charge under Sections 363, 366A, 376 read
with 34 IPC and Sections 4 and 17 of the PoCSO Act against A1;
Sections 363, 366A read with 34 IPC and Section17 of the PoCSO
Act against A2 and Section 368 IPC and Section 17 of the PoCSO
Act against A3, which was read over and explained to the accused
persons, to which they pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 17 were examined
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and Exts. PW1/A-B, PW1/DA, PW2/A, PW3/A, PW4/A, PW5/A,
Mark X, PW7/A, PW8/A-B, PW9/A-B, Mark A, PW12/A,
PW13/A, PW14/A, PW15/A-D, PW17/A-I and Mark 17A were
marked.
6. After the close of the prosecution evidence, the accused
persons were questioned under Section 313(1)(b) Cr.P.C.
regarding the incriminating circumstances appearing against them
in the evidence of the prosecution. They denied all those
circumstances and maintained their innocence.
7. After questioning the accused persons 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
persons (see Moidu K. versus State of Kerala, 2009 (3) KHC
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89; 2009 SCC OnLine Ker 2888). In the case on hand, the
accused persons have no case that non-compliance of Section 232
Cr.P.C. has caused any prejudice to them.
8. No oral and documentary evidence was adduced by the
accused persons.
9. Upon consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment dated 04.10.2019, held A1 guilty of the offences
punishable under Section 376IPC and Section 4 of the PoCSO Act.
A1 to A3 have been acquitted under Section 235(1) Cr.P.C of the
charges under Section 363, 366A, 368 read with 34 IPC and
Section 17 of the PoCSO Act. The trial court, vide order on
sentence dated 18.10.2019, sentenced A1 to rigorous imprisonment
for a period of ten years and fine of ₹10,000/- and in default of
payment of fine, to simple imprisonment for one month for the
offence punishable under Section 376 IPC. Benefit under Section
428 Cr.P.C has been granted. Aggrieved, A1 has come up in
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appeal.
10. It was submitted by the learned counsel for A1 that PW5
admitted in her testimony that she was in a relationship with A1
and that a marriage ceremony had taken place between them. PW5
was more than 15 years of age at the time of the incident. Since the
incident occurred on 24.07.2013, which is before the
pronouncement of the Apex Court’s dictum in Independent
Thought v. Union of India(2017) 10 SCC 800, Exception 2 to
Section 375 IPC was applicable, under which sexual intercourse by
a husband with his wife, the wife not being under 15 years of age,
did not constitute rape. Reliance was placed on the dictum in
Islam v. State of Uttar Pradesh, 2025 SCC OnLine All 5974.
11. It was submitted by the learned Amicus Curiae appearing
for PW5 that the alleged marriage was not a valid marriage but a
child marriage, which is voidable at the instance of the victim.
PW5 in her testimony deposed that she does not consider A1 to be
her husband and that she does not want to live with him as his
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wife. It was further submitted that the religion of A1 has not been
established as he has a Hindu name, but his father’s name suggests
that he is a Christian and hence, such a marriage cannot be legally
recognised. Reliance was placed on Gullipilli Sowria Raj v.
Bandaru Pavani, (2009) 1 SCC 714 and Vishwanath Ahirwar v.
State of Uttar Pradesh, (2023) 1 HCC (All) 48.
12. The learned Additional Public Prosecutor submitted that
there is no infirmity in the impugned judgment calling for an
interference by this Court.
13. Heard both sides and perused materials on record.
14. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
appellant/A1by the trial court are sustainable or not.
15. The law was set in motion by Ext. PW1/A FIS of PW1,
namely, the brother of PW5 and PW9 on 25.07.2013, in which he
has stated that his sisters (PW5 and PW9) had gone missing since
24.07.2013.
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16. Ext. PW5/A 164 statement of PW5 is seen recorded on
03.08.2013. In her statement, PW5 has stated thus: She left her
home with her sister on 24.07.2013. She loves Amit (A1). He is
known to her for last 3 months. She told Amit to take her away
from home. Bhoop Singh (A2), Amit’s friend, also came. All of
them went to Ganganagar by train. He put his private part inside
her private part. We had sex once, and then we came to Delhi.
17. PW9, sister of PW5, in her Ext. PW8/B 164 statement
states thus: She left her house with her sister (PW5) in the
afternoon of 24.07.2013. They went along with Amit (A1), who
said that he would meet them outside the house. They went to
Palwal and then took a train to Ganganagar because Amit (A1)
told them that his friend lives in Suratgarh. Her sister (PW5) and
Amit are having an affair. Amit’s brother told him on the phone to
come to Delhi so they came to Delhi and then the police
apprehended them.
18. PW5 when examined deposed that at A1’s request, she
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went to Palwal along with her sister PW9 and Bhoop Singh (A2)
for an excursion. They travelled first to Palwal by auto, then
proceeded to Ganga Nagar by train, and thereafter to Surat Garh by
bus. At Surat Garh, they stayed at the house of Sunil (A3), who is
related to Bhoop Singh (A2). Amit (A1) had physical relations
with her like a husband with wife. Amit (A1) thereafter returned to
Delhi. They stayed at Surat Garh for about 8 to 9 days. Amit (A1),
Sunil (A3), and Bhoop Singh (A2) were employed at Surat Garh
and used to go out for work during the day. One night, she stayed
alone in a room with Amit (A1), while other family members slept
in another room. Amit (A1) had physical relations with her on the
said day. A marriage ceremony was also performed between her
and Amit (A1) at Surat Garh, though she does not remember the
exact date. PW5 further deposed that she does not consider Amit
(A1) to be her husband and does not wish to live with him. After
about ten days, while they were returning to Delhi, the police
apprehended them at the Railway Station. PW5 admitted that when
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she was taken for medical examination, she refused to undergo it.
18.1. PW5, in her cross-examination, admitted that on
24.07.2013, she went gone with Amit (A1) voluntarily, as he told
her they would go on an excursion. Amit (A1) took her and her
sister PW9 to Palwal in an auto. A1 did not force or compel them
to accompany him in the auto. PW5 deposed that her marriage
with A1 was solemnised in a temple at Surat Garh. She could not
recall the exact date of their marriage. PW5 admitted that the
marriage was performed with her consent and willingness. In the
cross examination, PW5 also has a case that A1 had physical
relations with her forcibly and without her consent. According to
PW5, she was disturbed and scared, and hence did not go for
medical examination. She denied the suggestion that no medical
examination was done because A1 did not have physical relations
with her.
19. PW9 deposed that on 24.07.2013, she and PW5, her
sister, left their house and went along with A1 to Palwal and took a
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train to Shri Ganga Nagar. They met Bhoop Singh @ Bhagwan
Singh (A2) at Saathfoota road, who also accompanied them. From
Shri Ganga Nagar, they went to Surat Garh and met Sunil (A3).
They stayed at Sunil’s (A3) house. After about 6 to 7 days, Amit
(A1) returned to Delhi as he had some urgent work. A1 was
arrested in Delhi by the police. When Bhoop Singh (A2) was
bringing them back to Delhi, the police met them at the railway
station of Surat Garh. PW9 admitted that she refused her medical
examination.
19.1. During her cross-examination, PW9 admitted that PW5
was having an affair with Amit (A1) and they had planned to
elope. PW9 admitted that Bhairo (A2) helped them speak to their
parents on the phone whenever they asked him to connect them to
their home. PW9 deposed that she did not see A1 and her sister
having any physical relations.
20. PW10, mother of PW5 and PW9, deposed that there is an
age difference of approximately two and a half years between her
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two daughters. She denied any affair between PW5 and A1.
21. The challenge in this appeal is limited to the allegation of
rape and penetrative sexual assault punishable under Section 376
IPC and Section 4 of the PoCSO Act against A1. All the accused
persons, including A1, have been acquitted of the Charge of
kidnapping, abetment, and confinement.
22. Section 375 IPC defines the offence of rape. It provides
that sexual intercourse amounts to rape if it is committed against a
woman’s will, without her consent, with consent obtained by fear
or misconception of fact, with consent given by a woman who is
incapable of understanding the nature and consequences of the act,
or with or without her consent when she is under the prescribed
age.
23. The learned counsel for the appellant/A1 submitted that
the case on hand would fall within Exception 2 of Section 375 IPC
as it stood before the decision in Independent Thought (supra).
Exception 2 as it stood then provided that sexual intercourse by a
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man with his own wife, the wife not being under fifteen years of
age, was not rape. The prosecution version itself indicates that a
marriage ceremony was performed between A1 and PW5, and the
age of PW5 was above fifteen years at the relevant time, the act of
sexual intercourse would prima facie fall within Exception 2 to
Section 375 IPC, as it then existed. Since the date of the incident in
the present case is before the decision in Independent Thought
(supra), the ratio cannot be applied retrospectively.
24. A perusal of Ext. PW15/D birth certificate of PW5
indicates that PW5 was born on 05.02.1998 and therefore was aged
15 years and 5 months at the time of the incident. Therefore, it is
proven that PW5 was above 15 years of age at the time of the
incident.
25. Coming to the aspect of marriage, PW5 herself admits
that she and A1 had undergone a ceremony of marriage in a temple
at Surat. It is true that PW9 her sister does not speak of it. But
PW5, the victim herself says that her marriage with A1 had been
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solemnised. There is no case for the prosecution that the marriage
had not been solemnised as per the rites and customs of the
community to which they belong. PW5 admittedly was aged 15
years at the time of marriage, apparently a minor. Section 2(a) of
the Prohibition of Child Marriage Act, 2006 (the PCM Act)
defines a child as a person who, if a male, has not completed 21
years of age and if a female who has not completed 18 years of
age. Section 2(b) defines child marriage as a marriage to which
either of the contracting parties is a child. Apparently PW5 was a
child when the marriage was solemnised. Section 3 of the PCM
Act reads thus –
“3. Child marriages to be voidable at the option of
contracting party being a child.–(1) Every child marriage,
whether solemnised before or after the commencement of this
Act, shall be voidable at the option of the contracting party
who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a
decree of nullity may be filed in the district court only by a
contracting party to the marriage who was a child at the time
of the marriage.
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(2) If at the time of filing a petition, the petitioner is a minor,
the petition may be filed through his or her guardian or next
friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time
but before the child filing the petition completes two years of
attaining majority.
(4) While granting a decree of nullity under this section, the
district court shall make an order directing both the parties to
the marriage and their parents or their guardians to return to
the other party, his or her parents or guardian, as the case
may be, the money, valuables, ornaments and other gifts
received on the occasion of the marriage by them from the
other side, or an amount equal to the value of such valuables,
ornaments, other gifts and money:
Provided that no order under this section shall be passed
unless the concerned parties have been given notices to
appear before the district court and show cause why such
order should not be passed.”
(Emphasis Supplied)
Reading Section 3 of the PCM Act makes it clear that a child
marriage whether solemnised before or after the commencement of
the act would be voidable at the option of the party who was a
child at the time of the marriage. The proviso makes it clear that
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the contracting party to the marriage who was a child at the time ofthe marriage, has to move a petition for annulling the marriage
before the District Court concerned. Therefore, a person who
wants to avoid the marriage on the ground that it is voidable, will
have to follow the procedure contemplated under the proviso and
not otherwise. PW5 has no case that any application has been
moved under Section 3 of the PCM Act.
26. The testimony of PW5 and PW9 makes it clear that the
former did have an affair with A1 and that she had voluntarily
eloped with A1. In the 164 statement, PW5 has no case of forcible
sexual intercourse by A1. PW5 in the box also admitted that the
relationship was consensual. However, on further cross
examination she deposed that A1 had forcibly established sexual
relations with her. It is clear that PW5 being a minor, her consent
is immaterial. However, apart from the testimony of PW5, there is
no other evidence including medical evidence to support her
version. It is certainly true that for a conviction of an offence under
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Section 375, the sole testimony of the victim alone be sufficient
provided it is trustworthy and credible.
27. In this context, I refer to exhibit PW2/A, the MLC of
PW1. The column relating to the particulars of injuries reads thus –
“Alleged H/o absconding from her home on 24.07.2013
with her sister without her parent’s knowledge.
Their parents lodge a FIR regarding them missing on
25.07.2013. They went to Suratgarh with their neighbour
Amit and Bhoop Singh and returning to home on
01.08.2013, when police found them on railway station.
No H/o sexual assault/rape.
Victim not giving consent for gynaecological examination.”
(Emphasis supplied)
28. In addition to this, PW9, the sister of PW5 deposed that
she along with PW5 and A1 were in the same room and that they
were sleeping in the same cot. But she never saw A1 having sexual
intercourse with PW5, her sister. PW5 does not give any cogent
reason(s) as to why she refused medical examination. Therefore,
on an entire reading of the materials on record, I find that the
prosecution has not been able to prove the offence of rape beyond
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reasonable doubt and that so A1/the appellant is entitled to the
benefit of doubt.
29. In the result, the appeal is allowed, and the impugned
judgment is set aside. The appellant/A1 is acquitted under Section
235(1) Cr.P.C. of all the offences charged against him. He is set at
liberty and his bail bond shall stand cancelled.
30. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 23, 2026/ER/RS
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