Delhi High Court
Sudarshan vs State on 15 April, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 08.04.2026
Judgment pronounced on: 15.04.2026
+ CRL.A. 1144/2016
SUDARSHAN .....Appellant
Through: Ms. Manika Tripathy, Advocate
(DHCLSC) with Mr. Aakash M., Mr.
Raman Khan, Ms. Nandini Goel and
Mr. Saksham Singh, Advocates.
versus
STATE .....Respondent
Through: Mr. Utkarsh, APP for State with SI
Komal, P.S. Aman Vihar
Mr. Raghavendra Mohan Bajaj,
Ms. Shagun Agarwal and Mr. Pritesh
Raj, Advocates for victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) of Code of
Criminal Procedure (the Cr.P.C.), the sole accused in SC No. 182
of 2014 on the file of the Additional Sessions Court, Rohini
District Courts, New Delhi, assails the judgment dated 08.12.2015
as per which he has been convicted and sentenced for the offences
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punishable under Section 10 of the Protection of Children from
Sexual Offences Act, 2012 (the POCSO Act).
2. The prosecution case, is that on 10.07.2014 at about
02:30 PM, at House No. B-337, Gali No. 2, Prem Nagar-III,
Gauri Shankar Enclave, Delhi, the accused attempted to commit
aggravated sexual assault on PW12, a minor girl aged
approximately 4½ years, by removing her underwear and
climbing over her back with the intent to commit a wrongful act
on her.
3. Based on Ext. PW11/A FIS/FIR of PW11, the mother of
PW12, given on 10.07.2014, crime no. 730/2014, Aman Vihar
Police Station, that is, Ext. PW1/A FIR was registered by PW1
Head Constable (HC) alleging commission of the offence
punishable under Section 354 IPC. PW14 conducted
investigation into the crime and on completion of the same filed
the charge-sheet/final report alleging commission of offences
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punishable under Sections 511, 354 and 376 IPC and Section 10
of the PoCSO Act.
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 as per order dated 29.01.2015 framed a
charge under Section 9(m) read with Sections 10 and 18 of the
PoCSO Act, which was read over and explained to the accused
to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 14 were
examined and Exts. PW1/A-B, PW2/A-F, PW3/A-D, PW4/A,
PW5/A, PW7/A-B, PW8/A, PW11/A-C, PW13/A-C, PW14/A
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
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circumstances and maintained his innocence. He submitted that
he has been falsely implicated in this case.
7. After questioning the accused under Section 313(1)(b)
CrPC, compliance of Section 232 CrPC was mandatory. In the
case on hand, no hearing as contemplated under Section 232
CrPC 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 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. No oral or
documentary evidence was adduced by the accused.
8. Upon consideration of the oral and documentary
evidence on record and after hearing both sides, the trial court,
vide the impugned judgment dated 08.12.2015 held the accused
guilty of the offence contemplated under Section 9(m)
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punishable under Section 10 of the PoCSO Act and hence
sentenced him to undergo rigorous imprisonment for a period of
5 years and to a fine of ₹5,000/-, and in default of payment of
fine, to undergo simple imprisonment for six months. The
sentences have been directed to run concurrently. Aggrieved, the
accused has preferred the present appeal.
9. It was submitted by the learned counsel for the
appellant/ accused that the prosecution case suffers from serious
infirmities as there were no injuries, bruises or abrasions found
on PW11, which would ordinarily be expected if she had been
forcibly pushed to the ground, as alleged. It was further
submitted that there was no evidence of any attempt at
penetration or ejaculation as the clothes worn by PW12 was not
recovered by the police. The learned counsel also submitted that
PW12, being only four and a half years old, was too young to
accurately comprehend or describe the specific acts alleged, and
therefore, the detailed nature of her testimony raises a reasonable
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apprehension of being tutored by her parents. It was further
contended that the accused has been falsely implicated due to a
financial dispute, inasmuch as PW12’s family owed a substantial
sum of money to the father of the accused, and the accused has
been implicated to avoid repayment of the amount. It was
additionally submitted that the Charge framed against the
accused was under Section 9(m), punishable under Section 10
read with Section 18 of the POCSO Act, relating to an attempt to
commit aggravated sexual assault, and not the commission of the
offence itself. It was argued that the trial court did not amend the
Charge from attempt to one of completed offence, and therefore,
the accused cannot be convicted for an offence for which he has
not been charged.
10. Per Contra, it was submitted by the learned
Additional Public Prosecutor that the impugned judgment does
not suffer from any infirmity warranting interference by this
court as the trial court has duly considered each and every
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ground raised in the present appeal and, upon an overall
appreciation of the materials on record, adjudicated the matter
on merits.The testimony of PW12 corroborated by the testimony
of PW11, her mother, as well as PW9 her father clearly proves
the prosecution case. No contradiction, whatsoever, has been
brought out in their testimony. The witnesses have given
consistent statements all throughout the proceedings. Their
testimony has not been discredited in any way and hence, there
is no reason(s) to disbelieve them.
11. The learned counsel for the victim submitted that
Section 9(m) of the POCSO Act classifies a sexual assault as
“aggravated” when it is committed upon a child below the age of
twelve years. It was, therefore, contended that the conviction of
the accused under Section 10 of the POCSO Act by the trial
court is in accordance with law and does not warrant any
interference.
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12. Heard both sides and perused the materials on
record.
13. I shall first briefly refer to the evidence on record
relied on by the prosecution in support of the case. The incident
in this case is alleged to have taken place on 10.07.2014 at 02:30
p.m. inside the shop of the accused. Exhibit PW11/A, the
FIS/FIR of PW11, the mother of the victim, was recorded on the
very same day of the incident. In the FIS/FIR, PW11 has stated
thus: “…My younger daughter Aanchal, aged about 4 ½ years,
went from our house to the grocery shop in Gali No. 2 to get a
toffee today, dt 10-7-14 at 2:30 PM. My daughter Aanchal came
back crying at around 2:40 PM and told me that the shopkeeper
brother climbed onto her back, pulled down the underwear she
was wearing, and put something like water on her buttocks.
After this, taking my daughter Aanchal, I reached his house
where his mother started quarrelling. Meanwhile, my husband
called the police. Sudarshan s/o Shri Ram Prajapati r/o B-337
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Gali No. 2 Prem Nagar III Gauri Shankar Enclave has
attempted to do a wrong act with my daughter Aanchal, legal
action should be taken against him…”
14. Ext. PW3/A, the 164 statement of PW12, is seen
recorded on 14.07.2014 by the magistrate. In the said statement
PW12 states thus:- “One day, after coming from school, I went
to the shop to buy something. The shopkeeper took off my pants,
climbed onto my back, and then was not getting off. He also
spilled water on me.That is all, he did nothing else. I cried a lot.
Then I came home. After coming home, I told all this to
Mummy.”
15. PW12, when examined, fully supported the
version given in her Section 164 statement. PW12, in her cross
examination, deposed that no one was present there in the street
during her visit to the accused’s shop. The parents of the accused
had come to her house only once, that too when the accused was
apprehended. PW12 further deposed that she had visited the
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shop on several occasions also. PW12 denied any tutoring by her
mother.
16. PW11, mother of the victim, when examined before the
trial court, stood by her version in Ext. PW11/A FIS/FIR given
by her. According to PW11, on the said day her daughter
returned from school at about 02:00 PM and after a while, the
latter went to purchase toffee from a nearby shop. Her daughter
came weeping after 10-15 minutes and told her that “dukan
wala bhaiya meri peeth par upar chadh gaya tha meri pehni hui
kachhi ko niche karke mere chutad par pani jaisa kuch dal
diya”. On hearing this she went and confronted the accused.
PW11 further deposed that medical examination of her daughter
had been conducted, but she refused internal examination due to
the tender age of her daughter.
16.1. PW11, in her cross examination, deposed that
there is only one shop in their gali, which belongs to the father
of the accused and the same is situated at a distance of about 15
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paces from her house. Although, the gali is frequented by
passersby during morning and evening hours, it was generally
not very busy during noon. After the incident, she went to the
house of the accused, where the other family members were
found sleeping. According to PW11, the accused had confessed
his guilt before her and sought her forgiveness. PW11 denied
the suggestion that she and her husband used to regularly
purchase goods from the shop of the accused, or that her
husband owed a substantial sum of money to the father of the
accused or that the present case was falsely instituted to avoid
repayment. She admitted that the police had not seized the
clothes of her daughter.
17. PW9, father of PW12, when examined before the trial
court, fully supported the prosecution case. PW9, in his cross
examination, denied the suggestion that the accused has been
falsely implicated in order to extort money from the latter.
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18. As stated earlier, the version of PW12, the victim, is
that on 10.07.2014, when she went to the shop of the accused to
purchase toffee, the latter took her inside the premises, made her
lie on her stomach, removed her pants, climbed on top of her
and ‘poured water’ on her. ‘Water’ in the context spoken to by
PW12 could possibly only have been the semen of the accused.
PW12 also deposed that after the accused let her go, she
immediately returned weeping to her mother and disclosed the
incident. This version of PW12 is substantiated by the testimony
of PW11, her mother. The defence’s reliance on the absence of
bruises or abrasions in Ex. PW-5/A MLC is without merit,
inasmuch as the Charge is not one of penetrative sexual assault,
but of an attempt to commit aggravated sexual assault. Also, the
contention that a monetary dispute existed between the accused
and the family of PW12 is in no way probabilised by the
materials on record. The accused does not have a consistent
version also on this aspect because when PW11, the mother,
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was examined the suggestion put to her was that her husband,
that is, PW9, owed a substantial sum of money to the father of
the accused and to avoid repayment the accused has been falsely
implicated. But when PW9 was in the box, the accused has no
such case, on the other hand the suggestion was that the accused
has been falsely implicated as the former’s intention was to
extort money from the latter. However, when the accused was
examined under Section 313(1)(b) Cr.P.C, he has no such case.
He only said that he has been falsely implicated. On going
through the testimony of PW12, I do not find any reasons to
disbelieve her. 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.
19. Now coming to the question as to the offence
committed by the accused. The court charge reads –
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“That on 10.07.2014, at about 2.30 pm, at shop/house no. B-337, Gali
no. 2, Prem Nagar-III, Gauri Shankar Enclave, Delhi, within the
jurisdiction of PS Aman Vihar, Delhi, you committed aggravated sexual
assault upon the prosecutrix/victim child A (whose name and particulars
are mentioned in the charge sheet and have also been verbally told to the
accused today), a minor girl aged about 4 ½ years (less than 12 years),
by removing down her underwear and by climbing over her back and
attempting to commit wrong act with her and thereby committed offence
of attempt of aggravated sexual assault u/s 9 (m) of POCSO Act
punishable u/s 10 of POCSO Act r/w Section 18 of POCSO Act, within
the cognizance of this Court.”
(Emphasis Supplied)
20. However, the trial court by the impugned judgment has
found the accused guilty of the offence punishable under
Section 9(m) read with Section 10 of the PoCSO Act. 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)
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classifies an offence as aggravated sexual assault when sexual
assault is committed upon a child below the age of twelve years.
That being so, the act of the accused in taking PW12 inside his
shop, undressing her, climbing on top of her and lying over her,
and thereafter ‘pouring water’ on her body, 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 PW12, the
victim was a girl of approximately 4½ years, assumes the nature
of aggravated sexual assault within the meaning of Section 9(m)
of the PoCSO Act. But the accused has been charged only for an
attempt to commit the offence of aggravated sexual assault and
not for commission of the offence under Section 9(m). The
Charge was never amended by the trial court from attempt to
commit aggravated sexual assault to commission of aggravated
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sexual assault. Therefore, the trial court apparently went wrong
in convicting him for committing the offence of aggravated
sexual assault, as he was never Charged for the same. Though
the materials does make out a case of aggravated sexual assault,
the accused cannot be convicted for the same as he has been
Charged only for an attempt to commit aggravated sexual
assault on PW12.
21. Now coming to the sentence to be imposed on the
accused. Section 18 of the PoCSO Act which deals with attempt
to commit an offence says that whoever attempts to commit any
offence punishable under the Act or to cause such an offence to
be committed, and in such attempt, does any act towards the
commission of the offence, is liable to be punished with
imprisonment of any description provided for the offence, for a
term which may extend to one half of the imprisonment for life
or, as the case may be, one-half of the longest term of
imprisonment provided for that offence or with fine or with
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both. Section 7 defines sexual assault and as the assault has
been committed on a child below 12 years, the same falls under
section 9(m) punishable under Section 10 PoCSO Act. As per
Section 10 PoCSO Act, the offender is liable to be punished
with imprisonment which shall not be less than five years but
which may extended to seven years. Going by Section 18
PoCSO, half of the longest term of imprisonment provided of
seven years, will obviously be three and a half years (3 ½).
Therefore, the trial court could not have sentenced the accused
to five years imprisonment, which is apparently wrong. Hence
the sentence will have to be modified to the said extent.
22. In the result, the appeal is partly allowed. The appellant
is found guilty of having committed the offence of attempt to
commit aggravated sexual assault as contemplated under
Section 18 read with Section 9(m) of the PoCSO Act punishable
under Section 10 of the Act. Half of the maximum of seven
years of imprisonment provided under Section 10 would be
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three and a half years. Hence, the substantive sentence of
imprisonment is modified to rigorous imprisonment for three
and a half years for the aforesaid offence.
23. Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 15, 2026
Kd/rs
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