Delhi High Court
Shah Nawaz vs State Of Nct Of Delhi on 29 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 23.07.2026
Judgment pronounced on: 29.07.2026
+ CRL.A. 1190/2025 & CRL.M.A. 25100/2025
SHAH NAWAZ
.....Appellant
Through: Ms. Swati Verma and Ms. Aradhana
Chaudhary, Advocates.
Versus
STATE OF NCT OF DELHI
.....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Nisha Sharma, P.S. Kalindi Kunj.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 415(2) of the Code of
Criminal Procedure, 1973 (the Cr.P.C.) read with 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (the B.N.S.S.), the sole
accused in Sessions Case No. 255/2021 on the file of the
Additional Sessions Special Judge (FTSC), (POCSO ACT), South
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
East, Saket Court, New Delhi, assails the judgement dated
22.05.2025 and order on sentence dated 04.07.2025, as per which
he has been convicted and sentenced for the offence punishable
under Section 10 of the Protection of Children from Sexual
Offences Act, 2012 (the PoCSO Act) and Section 354B of the
Indian Penal Code, 1872 (the IPC).
2. The prosecution case is that 4-5 days prior to
30.04.2021, at around 11:00 P.M., in House No. 218, near
Bismillah Colony, Khadda Colony, Jaitpur, Delhi, the accused, the
father of PW3, a minor girl aged 10 years, attempted to commit
aggravated penetrative sexual assault on her and criminally
intimidated her. Hence, as per the chargesheet/final report, the
accused is alleged to have committed the offences punishable
under Sections 354 IPC, 506 IPC, and 10 of the PoCSO Act.
3. On the basis of Ext. PW2/A FIS/FIR of PW3 given on
30.04.2021, Crime no. 249/2021, Kalindi Kunj Police Station, i.e.,
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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Ext. PW4/B FIR was registered by PW4 Head Constable. PW8,
Sub Inspector conducted investigation into the crime and on
completion of the same, filed the chargesheet/final report alleging
commission of the offences punishable under the aforementioned
Sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, vide order dated 28.10.2021, framed a Charge under
Section 6 PoCSO Act read with 18 PoCSO Act and 354B IPC
against the accused, wherein the period of the alleged incident was
stated to be 4-6 days prior to 03.04.2011. Thereafter, the trial court
amended the Charge vide order dated 04.11.2024 to modify the
period of the incident to be 4-5 days prior to 30.04.2021. The
Charge was read over and explained to the accused, to which he
pleaded not guilty.
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
5. On behalf of the prosecution, PWs 1 to 10 were
examined and Ext. PW 1/A-G, Ext. PW 2/A-B, Ext. PW3/B, Ext.
PW4/B-C, Ext. PW5/A-B, PW7/A and Ext. PW8/B-C were
marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He submitted that there was an ongoing
property dispute and hence the false implication.
7. After questioning the accused under Section 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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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.
8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 22.05.2025 held the accused
guilty of the offence punishable under Sections 10 of the PoCSO
Act and 354B IPC. Vide order on sentence dated 04.07.2025, the
trial court sentenced him to undergo rigorous imprisonment for a
period of 7 years and to fine of ₹25,000/-, and in default of
payment of fine, to simple imprisonment for a period of 2 months
for the offence punishable under Section 10 of the PoCSO Act. No
separate sentence has been awarded for the offence punishable
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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under 354B IPC.
10. The learned counsel for the appellant/accused
submitted that the impugned judgment is contrary to the facts,
circumstances of the case and, is bad in law as the trial court has
failed to correctly appreciate the materials on record and, is
therefore, liable to be set aside. There is also significant delay in
the registration of the FIR. It was further submitted that there are
inconsistencies in the FIS/FIR; the 164 Statement and the
testimony of PW3. It was further submitted the date and time of
the incident are not mentioned in the 164 Statement. The MLC
does not corroborate the testimony of PW2 and PW3. PW2 refused
internal examination of PW3 and thus, an adverse inference has to
be drawn by the Court. The siblings of PW3 were not examined by
the prosecution. The learned counsel also pointed out that no site
plan of the scene of occurrence has been prepared.
11. Per Contra, it was submitted by the learned Additional
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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Public Prosecutor that there is no infirmity in the judgment of the
trial court calling for an interference by this Court. Further,
reliance was placed on the decision of the Apex Court, in State of
Punjab v. Gurmit Singh, 1996 AIR SC 1393 to contend that the
testimony of PW3 alone is sufficient for conviction, and that the
courts should neither demand corroborative evidence as a rule nor
reject the case over minor discrepancies. Further, it was submitted
that there is no evidence adduced to probabilise the defence
version that there existed a property dispute between the accused
and PW2.
12. Heard both sides and perused the materials on record.
13. The only point that arises for consideration in this
appeal is whether there is any infirmity in the impugned judgement
warranting an interference by this Court.
14. I will first briefly refer to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
PW2/A, the FIS/FIR of PW3, the minor victim, recorded on
30.04.2021 reads thus: “4-5 days ago, around 11:00 PM, while we
were all sleeping, I woke up and saw that my father, Shah Nawaz,
(the accused) was lying on top of me. He had removed his clothes
and had also taken off my pants. Frightened, I screamed, which
woke my mother (PW2) up, and she pushed my father of me. After
this incident, we were scared and nervous, and since a lockdown
was in place, we could not go to the police station…”
14.1. PW3, in the 164 statement marked as Ext. PW3/A
recorded on 01.05.2021, states thus: “When we were sleeping at
night, Papa (the accused) took off his pants and lay down on top of
me. I woke up and screamed. Then Mammi (PW2) also woke up.
Mammi pushed Papa away and took me to another room and
bolted it from the inside, but Papa broke the bolt. Then Papa
started to pull me towards him. Then Mammi took me to another
room and locked it from inside. When I told Mammi about the
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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incident, Papa threatened me, and he had even made a sword to
kill us…”
15. PW3, the minor girl, when examined before the trial
court, deposed that approximately two days before reporting the
incident, at around 11:00 P.M., she was sleeping with her mother
(PW2). When she woke up, she saw her father (the accused) was
trying to lie on top of her. He was naked. Her dress of the lower
part had been pulled off. When her father (accused) was
attempting to mount her, his elbow touched her thighs. She woke
up instantly. Her hands touched her mother’s (PW2) face due to
which PW2 woke up. She deposed that when PW2 saw the scene,
the former pulled away her father. Thereafter, her mother (PW2)
took all of them to another room and latched the door. However,
her father started banging on the door and tried to break in. The
latch of the door broke, but, somehow her mother (PW2) kept
them all safe in the other room for the entire night. Her father then
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
started beating her mother (PW2). When her mother reported the
matter, her father left the house. The police then took her to the
hospital for medical examination. PW3 admitted that she had
earlier stated that the incident took place 4-5 days before the date
of reporting, i.e. 30.04.2021. Actually, it took place two days
before the date of reporting. It was due to lapse of time, she was
unable to recall the exact duration.
15.1. PW3, during her cross examination, stood by her
version. PW3 admitted that on the date of the incident, her brother
had also been sleeping along with them. All of them used to retire
for the night after her father (accused) returned home from work in
the night. PW3 denied any quarrel between her parents prior to the
incident. But after the incident, a quarrel took place between her
parents as her mother was trying to save her.
16. PW2, the mother of PW3, when examined, supported
the version of her daughter. On the date of the incident, she along
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
with her children were sleeping on the floor of her room. At
around 11:30 P.M., she woke when her daughter (PW3) raised an
alarm. She saw that her husband (the accused) was lying on top of
her daughter (PW3), who was sleeping next to her. The accused
was fully naked. The lower pant worn by her daughter (PW3) had
also been pulled down. She scolded the accused and took her
daughter (PW3) to another room and bolted the latches of the door
from inside. The accused started knocking on the door and broke
the latches. He then started quarrelling with her. She did not
immediately go to the police station to report the incident as it was
night time. On the next day, there was lockdown. She had made a
call to the police after which a police official visited her residence
and enquired about the incident.
16.1. PW2, more or less stood by her case in the cross-
examination.
17. It is true that the FIS/FIR in the present case was not
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
lodged on the date of the incident itself. But it was lodged only on
30.04.2021. However, the testimony of PW2 makes it clear as to
why the delay happened. The incident happened during the night.
The next day was a lockdown. This aspect of her testimony has not
been discredited. All delays are not fatal to the prosecution case. In
the case on hand, in the circumstances spoken to by PW2, the
delay seems quite natural and unavoidable.
18. Further, the reliance on the absence of bruises or
abrasions on PW3 is without merit, inasmuch as the Charge is not
one of penetrative sexual assault, but only an attempt to commit
aggravated penetrative sexual assault. It is not the case of the
prosecution that there was penetration by the accused or that there
were injuries. Thus, PW2’s refusal for the internal examination of
PW3 and thereafter the report in the MLC showing that there were
no external injuries, is immaterial. Further, the lack of an internal
site plan of the rooms where the incident took place is also not
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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fatal to the prosecution case.
19. On going through the testimony of PW3, I do not find
any reasons to disbelieve her. The testimony of PW3 appears clear,
cogent, natural and consistent enough to establish the offence. She
has narrated the incident in a very natural manner, describing the
sequence of events leading up to the grave incident, the act itself,
including her immediate reaction thereafter. Nothing has been
elicited to discredit PW3, during her cross examination. The
testimony of PW2 further corroborates the version narrated by
PW3, particularly, regarding the disclosure made by PW3 about
the incident; the confrontation with the accused and the subsequent
conduct of the accused of banging on the door.
20. The learned counsel for the appellant contended that the
siblings of PW3 also ought to have been examined as it has come
on record that they were also present at the time of the alleged
incident. Non-examination of the siblings does not in any way cast
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
16:30:21
a doubt in the mind of the Court in the light of the clear testimony
of PW3 and her mother. As held by the Apex Court in Ganesan v.
State, (2020) 10 SCC 573, the sole testimony of victim regarding
the sexual assault, if found credible and reliable, requires no
corroboration and is sufficient in law to sustain a conviction.
Corroboration may be sought as a matter of prudence where the
evidence appears tutored or suffers from material contradictions.
The Court must, however, carefully rule out the possibility of
tutoring and, upon finding the testimony to be natural and reliable,
act upon it (See State of Madhya Pradesh v. Balveer Singh,
2025 SCC OnLine SC 390). The competency of a child witness
depends on the satisfaction of the trial court as to the child’s
understanding and ability to depose; non-administration of oath is
not fatal; and though courts must remain alive to the possibility of
tutoring, there is no bar in law to base conviction solely on the
testimony of a child witness who withstands cross-examination
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SHARMA
Signing Date:29.07.2026
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(See State of Rajasthan v. Chatra, 2025 SCC OnLine SC 566).
21. The discrepancies pointed out are minor in nature and
do not go to the root of the matter. Variations in the narration of
events, especially by a child witness and her mother recounting a
traumatic incident, are bound to occur and, in fact, lend
authenticity rather than detract from it.
22. Now coming to the question of whether PW2 tutored
PW3 to falsely implicate the accused due to an impending property
dispute between the spouses. However, on a combined reading of
the materials on record, it is seen that apart from a mere
suggestions put to PW2, there is no documentary material(s)
adduced to prove such defence. It is true that in a criminal case, the
accused has the right to remain silent. However, if he takes up a
specific defence then the onus would be on him to establish the
same, though the degree of proof required is only on the basis of
preponderance of probabilities (See Harbhajan Singh v. State of
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SHARMA
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Punjab, AIR 1966 SC 97; V.D. Jhingan v. State of U.P., AIR
1966 SC 1762; and Munshi Ram v. Delhi Administration, AIR
1968 SC 702). No materials have been brought on record by the
appellant to establish that there were ongoing proceedings between
PW2 and the accused before the alleged incident, or even after the
alleged incident. It is improbable that a minor child would falsely
implicate her own father in an offence of such a grave nature, in
the absence of any compelling reasons. Therefore, there are no
cogent materials to substantiate the contention that PW3 was
tutored by PW2 due to the disputes pending between the spouses.
23. As held in Gurmit Singh (Supra), it cannot be
overlooked that a woman or a girl subjected to sexual assault is not
an accomplice to the crime but is a victim of another person’s lust
and it is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. The inherent bashfulness of the females and the
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SHARMA
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tendency to conceal outrage of sexual aggression are factors which
the courts should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the courts
should find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as
a rule, in such cases amounts to adding insult to injury.
24. In the case on hand, with the available materials on
record, I find that the prosecution has succeeded in establishing the
prosecution case beyond reasonable doubt, whereas the defence
setup has turned out to be highly improbable.
25. Now coming to the question as to the offence
committed by the accused. The trial court by the impugned
judgment has found the accused guilty of the offence punishable
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SHARMA
Signing Date:29.07.2026
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under Section 10 of the PoCSO Act and 354B IPC. Sexual assault
has been defined under Section 7 of the PoCSO Act to mean that
whoever, with sexual intent, touches the vagina, penis, anus or
breast of a child, or makes the child touch such parts of that person
or any other person, or does any other act with sexual intent
involving physical contact without penetration, is said to commit
sexual assault. Section 9(m) classifies an offence as aggravated
sexual assault when sexual assault is committed upon a child
below the age of twelve years. Section 9(n) classifies an offence of
sexual assault being a relative of the child through blood or
adoption or marriage or guardianship or in foster care, or having
domestic relationship with a parent of the child, or who is living in
the same or shared household with the child. Further, an offence
under 354B IPC is made out when:- (i) a man assaults or uses
criminal force to any woman or abets such act and; (ii) intends to
disrobe or compel her to be naked. That being so, the act of the
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SHARMA
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accused, being the father of PW3, undressing her and lying naked
over her would necessarily come within the expression “does any
other act with sexual intent involving physical contact without
penetration” as contemplated in the latter part of Section 7 of the
PoCSO Act. The offence of sexual assault when perpetrated upon
a child below 12 years of age as in the present case, where PW3,
the victim was a girl of approximately 10 years, assumes the nature
of aggravated sexual assault within the meaning of Section 9(m) of
the PoCSO Act. The accused being the biological father of PW3,
makes the case squarely fall in the ambit of 9(n) of the PoCSO
Act.
26. On a cumulative appreciation of the oral and
documentary evidence, this Court finds no reason to disbelieve the
testimony of PW3. The findings recorded by the trial court are
based on proper appreciation of evidence and do not suffer from
any perversity or illegality, warranting interference by this Court.
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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27. In the result, the appeal sans merit, is dismissed.
28. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 29, 2026
rs
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Signed By:RAMAN
SHARMA
Signing Date:29.07.2026
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