Shambhu vs State on 13 July, 2026

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    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

    SPONSORED

    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

    Signature Not Verified CRL.A. 278/2020 Page 1 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 2 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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.

    Signature Not Verified CRL.A. 278/2020 Page 3 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22

    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

    Signature Not Verified CRL.A. 278/2020 Page 4 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 5 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 6 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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.

    Signature Not Verified CRL.A. 278/2020 Page 7 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 8 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 9 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 10 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 11 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 12 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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.

    Signature Not Verified CRL.A. 278/2020 Page 13 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22

    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.

    Signature Not Verified CRL.A. 278/2020 Page 14 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 15 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 16 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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.

    Signature Not Verified CRL.A. 278/2020 Page 17 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22

    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

    Signature Not Verified CRL.A. 278/2020 Page 18 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 19 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 20 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 21 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22
    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

    Signature Not Verified CRL.A. 278/2020 Page 22 of 22
    Signed By:RAMAN
    SHARMA
    Signing Date:13.07.2026
    18:17:22



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