Sudhir @ Lukka vs State (Nct Of Delhi) on 14 July, 2026

July 15, 2026

Delhi High Court

Sudhir @ Lukka vs State (Nct Of Delhi) on 14 July, 2026

1. The present appeal has been preferred under Section 415(2) read with
Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter
‘BNSS’) assailing the impugned judgment dated 9th October, 2024 and order
of sentence dated 12th December, 2024 passed by Ld. ASJ-06 (POCSO
ACT), South-East, Saket Court, Delhi in Session Case No. 352/2017 arising
out of FIR No. 322/2017, Police Station Jaitpur under Section 376(2)(i) of
the Indian Penal Code, 1860 (hereinafter ‘IPC‘) and Section 6 of Protection
of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’).

SPONSORED

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2. By way of the impugned judgment, the accused/Appellant (hereinafter
‘Appellant’) Sudhir @ Lukka was convicted of the charges under Section 6
of POCSO Act and under Section 376(2)(i) of the IPC, on the ground that the
Prosecution had been able to discharge its burden to prove its case against
the Appellant beyond all reasonable doubt. The conclusion of the ld. Trial
Court is set out below:

“35. Since the prosecution has discharged its
burden to reasonably prove the case as against the
accused, the burden is upon the accused to rebut the
presumption u/s 29 and 30 of the POCSO Act and to
explain the circumstances as to why he has been
falsely implicated. However, the accused has failed
to rebut the presumption against him. Though, he
has examined DW-1, in his defence, to prove that he
was not present at the time of incident and was
called later on but the evidence of DW-1 has failed
to prove the alibi of the accused. The incident is
stated to have happened at about 03.00 PM. The
accused left the place of incident after committing
rape with PW-1. DW-1 has deposed that on
07.06.2017, police and family member of “T” asked
him to call his brother and his brother came at about
06.00 PM. There is nothing in the evidence of DW-
1 to show that the accused was not present at the
place of incident at the time of commission of the
offence at about 03.00 PM. Therefore, the accused
has not been able to rebut the presumption against
him either by way of cross examination of the
prosecution witnesses or by way of leading
evidence.

Final verdict:

36. On the basis of above said discussions, the
prosecution has been able to prove the case against

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the accused beyond all reasonable doubt. In view of
the same, accused Sudhir @ Lukka is convicted for
the offence punishable under Section 376(2)(i) IPC
&Section 6 of POCSO Act 2012.”

Factual Matrix:

3. The case of the Prosecution arises out of an incident that occurred on
7th June, 2017 at about 3:00 PM. The allegations are that the victim ‘T’
(hereinafter ‘Prosecutrix’), a minor girl aged about 13/14 years, was taking
rest in her room after offering namaz as she was observing Roza. Her two
younger brothers were sleeping and her elder sister had gone to the roof to
collect clothes. The Appellant, who was residing in a different room within
the same premises, came to her room and did badtamiji with her.

4. He thereafter removed her pyajami, removed his pant and underwear,
and inserted his penis into her vagina. He told her not to disclose the incident
to anyone and thereafter ran away. In the meantime, her older sister returned
from the roof, and the Prosecutrix told her about the incident.

5. The elder sister of Prosecutrix slapped the Appellant and the Appellant
fled away from the spot after threatening Prosecutrix’s sister to teach her a
lesson for slapping him.

6. The Prosecutrix and her sister then informed their mother (PW 4), who
subsequently called the Prosecutrix’s maternal uncle, and information was
conveyed to the police.

7. Vide DD No. 40A dated 7th June, 2017, received at Police Station
Jaitpur, information was recorded regarding the sexual assault of the minor
girl. Upon receiving the DD entry, ASI Shyam Charan (PW-14), along with
Ct. Jitender (PW-8) and W/Ct. Anita (PW-13) reached the spot, met with the
Prosecutrix, and sent her for medical examination to AIIMS Hospital along

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with her mother and W/Ct. Anita. The Prosecutrix was medically examined
vide MLC No. 4891/17, wherein the doctor opined the alleged history of
sexual assault, and counselling was conducted through Counsellor Ruby Sain.
The Appellant was subsequently arrested on 8th June, 2017 from Harsh Vihar.

8. On the basis of the said information and statement, a case under Section
6 of POCSO Act and Section 376(2)(i) of IPC was registered against the
Appellant. Upon completion of investigation, a charge-sheet was filed before
the concerned court, and cognizance of the offences was taken. Vide order
dated 17th April, 2018, the case was committed to the Court of Sessions for
trial.

9. During the course of trial, the Prosecution examined as many as 15
witnesses to establish its case. The evidence of each witness, as captured by
the ld. Trial Court has been reproduced hereinbelow:

“4.1 PW-1 Ms. ‘T’ is the victim. She has
deposed regarding the facts of the case. She
identified her signature on statement Ex. PW1/A,
consent form Ex. PW1/B, arrest memo of accused
Ex PW1/C. Her statement recorded u/s 164 Cr.PC
is Ex. PW1/D. She had pointed out the place of
incident to the police which is Ex. PW1/E. She
identified her pajami which she was wearing at the
time of incident. The red colour pajami is Ex. P-1.

4.2 PW-2 Ms. Neelam Arora, had issued a
certificate Ex. PW2/A in respect of date of birth and
admission detail of victim girl, Ms. T D/o Mr. ‘AK’.
She also produced the admission form Ex. PW2/B,
relevant extract of admission register Ex. PW2/C,
affidavit of father and mother are Ex. PW2/D and
Ex. PW2/E.

4.3 PW-3 Ms. S is the sister of the victim. She

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deposed regarding the facts of the case. She has
deposed that on 07.06.2017, she alongwith victim T
and her brothers was in the house and her parents
had gone out for their duty. At about 3.00 PM, she
went to the roof to dry the clothes and at that time
victim T went to sleep after offering namaz and her
younger brothers were playing in the gali. On
hearing cry of victim T, she came down in the room
and saw that accused was wearing his trousers and
victim T was crying. She saw that victim T was not
wearing her legging and victim told her that
accused did galat kaam with her. Victim T had told
her that accused had raped her. She slapped
accused and accused threatened her and told her
“tujhey iss thapad ka jawab dunga”. Thereafter,
accused left. She called her mother and informed
her about the incident. Her mother called her
maternal uncle (mama). Her maternal uncle called
the police. Thereafter, victim T was taken to hospital
by the police officials.

4.4 PW-4 Smt. ‘A’ has deposed that she is
stepmother of T and T was 13 years old at the time
of incident. She has deposed regarding receiving of
the call from her daughter and her daughter
informed her about the incident. She has deposed
that her daughter T had shown her legging and it
was having blood stains. She called her brother and
her brother called the police. She has deposed
regarding recording of the statement of her
daughter T as Ex. PW1/A and recording of the
statement before the Ld. Magistrate. She has
deposed that T was taken for her medical
examination.

4.5 PW-5 Smt. ‘AB’ is the maternal aunt (mami) of
the victim. She has deposed that on 07.06.2017, she
received call from mother of T and she alongwith
her husband reached at the house of T. They came

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to know about the incident and her husband called
at 100 number. The mobile phone connection was in
her name and she had identified the CAF Ex. PW5/
A alongwith copy of her Election ID Ex. PW5/B.

4.6 PW-6 Sh. Amar Chand is the owner of the
premises No. 217, Gali No. 12-C, Om Nagar,
Meethapur and he had rendered out his house to one
Kadir and his family. He had also rented out the
premises to one Patwari.

4.7 PW-7 Sh. Asif is the maternal uncle (mama) of
the victim. He has deposed regarding receiving of
call from his sister and reaching at the house of his
sister. He has deposed regarding making call at 100
number from his mobile.

4.8 PW-8 Ct. Jitender has deposed regarding
receiving of information about the incident at the
Police Station. He alongwith lady Ct. Anita reached
at the spot and met with the victim and her mother.
The victim was sent for medical examination and
thereafter, her statement was recorded. The present
case got registered through him and further
investigation was marked to Inspector Anwar Khan.
He has deposed that IO prepared the site plan at the
instance of victim girl, accused was arrested vide
Ex. PW1/C and his personal search was conducted
vide Ex. PW8/A. Accused made disclosure statement
vide Ex. PW8/B and pointing out memo was
prepared at the instance of the accused vide Ex.
PW8/C. He has deposed that the handkerchief was
recovered from the accused and it was identified by
the victim. He seized the handkerchief vide Ex.
PW8/D. The handkerchief is Ex. P2.

4.9 PW-9 Ms. Saumya Kulshrestha has identified
the signatures of Dr. Aprajita Kumari on MLC No.
4891/17 of the victim. The MLC is Ex. PW9/ A. She
has deposed that genital examination of the victim,

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the doctor has found fourchette and introitus as
having longitudinal abrasion mark on posterior
fourchette. The anus portion was also examined and
as per finding of per rectal examination of the anal
was done. Hymen was found torn. Samples were
taken by Dr. Aprajita Kumari and given to the police
official Lady Ct. Anita in sealed condition alongwith
sample seal. The emergency card was also prepared
in the hospital of this victim girl, the same is Ex.
PW9/B. Her authority letter is Ex. PW9/C.

4.10 PW-10 Dr. Hemant Kumar Kanwar has
deposed regarding examination of the accused and
preparation of report Ex. PW10/A.

4.11 PW-10A ACP Harish Chander Pathak has
deposed regarding giving PCR form Ex. PW10/A to
the police officials of PS Jaitpur. He had also issued
certificate u/s 65B regarding correct contents of
computerized copy of PCR form, same is Ex.
PW10/B.

4.12 PW-11 Ct. Naresh Kumar had deposited the
exhibits in the office of FSL vide Road Certificate
No. 116/21/17. He has deposed that the exhibits
were not tampered with till they remained in his
custody. Copy of RC is Ex. PW11/A and copy of
acknowledgement is Ex. PW11/B.

4.13. PW-12 HC Sandeep Yadav had taken the
accused for his medical examination. He collected
the sealed pullandas from the doctor and it was
seized by the IO vide seizure memo Ex. PW12/A.

4.14. PW-13 W/HC Anita had gone to the
residence of T on 07.06.2017 along-with IO. She
took T to the hospital for her medical examination.
She handed over the eleven exhibits alongwith
sample seals to the IO Shyam Charan who had
seized the same vide seizure memo Ex. PW13/A.

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4.15. PW-14 ASI Shyam Charan is the first
investigating officer. He has deposed that on
07.06.2017, on receiving DD No. 40A, he had gone
to the house of the victim alongwith Ct. Jitender and
W/Ct. Anita. He met with the mother of the victim,
elder sister of the victim and with the victim. He sent
the victim for her medical examination and
recorded her statement as Ex. PW1/ A. He prepared
rukka and got the present FIR registered. After
registration of the case, the investigation was
handed over to Inspector Anwar Khan. Inspector
Anwar Khan prepared site plan at the instance of
the victim. He arrested accused and conducted his
personal search vide memo Ex. PW1/C and Ex.
PW8/A. He had also recorded the disclosure
statement of the victim which is Ex. PW8/B.
Thereafter, IO sent accused through Ct. Jitender for
accused medical examination. On accused personal
search, one handkerchief sky blue colour was
recovered from his possession. IO had seized the
same vide seizure memo, after preparing the
pullanda of the same, which is Ex. PW8/D. IO had
also prepared the pointing out memo at his instance
which is Ex. PW8/E. Thereafter, they returned to the
police station and IO had recorded his statement to
the said effect.

4.16. PW-15 Sh. Suresh Kumar Singla had
prepared the FSL report Ex. PW15/ A. On DNA
analysis, the allele from the source of exhibit 15
which is gauge cloth piece of accused is accounted
in the exhibits No. 6 which is cotton wool swap
which is defined as anal inner of the victim.

4.17. PW-15 Retired Inspector Anwar Khan is the
second investigating officer. He has identified his
signatures on seizure memo Ex. PW13/A, site plan
Ex. PW1/E, arrest of accused Ex. PW1/C, personal
search memo of accused Ex. PW8/A, disclosure

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statement of accused Ex. PW8/B, pointing out memo
Ex. PW8/C, seizure memo of handkerchief of the
accused Ex. PW8/D. He sent accused for his
medical examination through Ct. Sandeep. Ct.
Sandeep had handed over to him the MLC, exhibits
of the accused alongwith sample seal. He seized the
same vide seizure memo Ex. PW12/A. He also got
recorded the statement of victim u/s 164 Cr.PC.
Thereafter, he had prepared the charge-sheet and
filed the same before the Court. After receiving of
the FSL report, he prepared supplementary charge-
sheet and filed the same before the Court.”

10. After recording the Prosecution evidence, the Appellant was examined
under Section 313 Code of Criminal Procedure, 1973 (hereinafter, ‘Cr.P.C.’).
In his statement, he denied the Prosecution’s case and claimed false
implication in the case. He stated that he was falsely implicated by the
Prosecutrix and her family because they had borrowed ₹10,000 from him for
Prosecutrix’s brother’s treatment, which he was demanding back.

11. He further stated that his brother Ajay was in a relationship with the
Prosecutrix’s elder sister, and while his brother and the Prosecutrix’s family
favored the marriage, but he and his father opposed it due to religious
differences.

12. He alleged that on the date of the incident, he was away for work and
returned at around 06:00 P.M. only after receiving an emergency call from his
brother Patwari. Upon his arrival, he found his brother in the custody of the
police and the Prosecutrix’s family, following which he was apprehended by
ASI Shyam Charan.

13. He further alleged that after being taken to the Police Station, police
officials beat him in the lockup and forced him to give his semen samples. He

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maintained that he did not commit any rape and that the present case was
lodged at the instance of the Prosecutrix’s family to falsely implicate him.

14. The Appellant examined one Sh. Patwari Lal (DW-1) in his defence.
The ld. Trial court discussed his testimony as under:

” 7. In defence, accused has examined DW1 Sh.
Patwari Lal. DW1 Sh. Patwari Lal has deposed that
he is brother of Sudhir @ Lukka. On 07.06.2017, he
was selling vegetables on his rehri and was caught
by police and family members of ‘T’. They asked him
to call Sudhir @ Lukka. He called his brother and
his brother came at about 6.00 PM. They caught his
brother and gave beating to him and his brother.
They got some paper signed by him and his brother
and he was not aware what was written in those
papers. They took them to the Police Station. He was
moved outside the Police Station at about 6.30 PM
and his brother was taken away. He is not aware as
to why his brother was taken away.”

15. Upon perusing the record, the ld. Trial Court held that the Prosecution
successfully discharged its burden, thereby shifting the burden to Appellant
to rebut presumptions under Sections 29 and 30 of the POCSO Act against
the Appellant. The ld. Trial Court held that it is legally bound to presume the
commission of the offence and the existence of a culpable mental state unless
the contrary is proved beyond doubt. The ld. Trial Court found that the
Appellant failed to rebut this presumption. The testimony of his brother
(DW1/Patwari Lal) failed to establish an alibi for the actual time of the
incident.

16. Consequently, the Appellant was held guilty and convicted under
Section 376(2)(i) of the IPC and Section 6 of the POCSO Act, 2012. Vide the

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subsequent order on sentence, he was sentenced to Rigorous Imprisonment
for life along with a fine of Rs. 10,000/-, with the benefit of Section 428
Cr.P.C. being extended for the period already undergone. In default of the
payment of fine, he was to undergo Simple Imprisonment for 6 months. He
was further directed to pay Rs. 2,00,000/- as compensation to the Prosecutrix.
In addition, as final compensation, the Prosecutrix was awarded
Rs.10,50,000/- under the Delhi Victim Compensation Scheme 2018 read with
Rule 33(8) POCSO Act 2012.

17. Being aggrieved by the aforesaid conviction and sentence, the
Appellant preferred the present appeal.

Submissions on behalf of the Appellant

18. Ld. Counsel appearing for the Appellant submits that the Prosecution
has failed to satisfactorily establish the age of the Prosecutrix. He places
reliance upon the school certificate produced by Ms. Neelam Arora/ PW-2, to
submit that the foundational records relied upon by the Prosecution have not
been duly proved. He further submits that the minor status of the Prosecutrix
has not been established beyond reasonable doubt.

19. Ld. Counsel further submits that the Prosecution’s scientific evidence
is unreliable as the transportation seal of the biological samples was tampered
with and the chain of custody was completely broken. He submits that lady
Constable Anita/PW-13 deposed that she handed over the medical exhibits
along with the sample seals to the first Investigating Officer, ASI Shyam
Charan/PW-14. He further submits that the case has been falsely planted
against the Appellant.

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20. It is further submitted that the biological samples were sent to the
Forensic Science Laboratory after an unexplained delay of about 28 days.
During this period, there is no material on record to show where or in what
condition the exhibits were kept. He submits that the unexplained delay,
coupled with the absence of a complete chain of custody, raises serious doubts
regarding the integrity of the samples. He further submits that unless the
Prosecution establishes that the seals remained intact from the time of seizure
till examination by the FSL, the FSL report cannot be safely relied upon.

Submissions on Behalf of the Respondent

21. Mr. Bahri, ld. APP for the State, submits that the age of the Prosecutrix
on the date of the incident, i.e., 7th June, 2017, stands duly established in
accordance with Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter ‘JJ Act‘), read with Section 34 of the Indian
Evidence Act. He places reliance upon the testimony of Ms. Neelam Arora
(PW-2), School In-Charge, who proved the original school certificate,
admission form, extracts of the admission register and the attested copies of
affidavits of mother and father of the Prosecutrix. He places reliance upon the
Supreme Court’s decision in ‘State of Uttar Pradesh v. Anurudh‘, 2026
INSC 47, to submit that determination of age has to be undertaken in
accordance with the hierarchy prescribed under Section 94 of the JJ Act.

22. He further submits that the school records and the date of birth reflected
therein were never disputed during the trial. PW-2 was also not cross-
examined on these documents. In these circumstances, he submits that the
school records remained unchallenged and establish that the Prosecutrix was
a minor, aged about 14 years, 1 month and 2 days, on the date of the incident.

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Analysis

23. The Court has considered the matter.

24. Two questions arise for determination in the present appeal. The first
relates to the determination of the age of the Prosecutrix and the applicability
of the provisions of the POCSO Act. The second concerns whether the
commission of the offence stands established on the basis of the ocular,
medical and scientific evidence led by the Prosecution.

25. Since the conviction under the POCSO Act is founded upon the
prosecution establishing that the Prosecutrix was a “child” within the meaning
of Section 2(d) of the POCSO Act on the date of the incident, the question of
age assumes considerable significance. Section 2 (d) reads as under:

2. Definitions.–(1) In this Act, unless the context
otherwise requires, —

xxx

(d) “child” means any person below the age of
eighteen years;”

26. Further, the determination of age is governed by Section 94 of the JJ
Act. The relevant portion of Section 94(2) reads as under:

S. 94 Presumption and determination of age:

xxx

(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall

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undertake the process of age determination, by
seeking evidence by obtaining–

(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in
the absence thereof;

(ii) the birth certificate given by a Corporation or a
Municipal Authority or a Panchayat;

(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any
other latest medical age determination test
conducted on the orders of the Committee or the
Board:”

27. Thus, the statutory scheme gives primacy to documentary evidence for
determination of age, while medical opinion is resorted to only where the
prescribed documentary evidence is unavailable. However, the presumption
attached to such documents is not irrebuttable and their evidentiary value is
ultimately to be assessed on the basis of the evidence led before the Court.

28. In the present case, the prosecution examined PW-2/Ms. Neelam Arora,
the School In-Charge, who proved the school admission form, the relevant
extract of the admission register, the school certificate and the affidavits
furnished by the parents of the Prosecutrix at the time of her admission. The
said documents were duly exhibited during trial and formed the basis of the
finding recorded by the ld. Trial Court regarding the age of the Prosecutrix.

29. Significantly, the testimony of PW-2 remained unchallenged on the
aspect of age. No suggestion was put to the witness disputing the date of birth
recorded in the school records. The authenticity of the admission register,
admission form or the documents produced by PW-2 was also not questioned.

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Equally, no evidence was led by the defence to establish any different date of
birth of the Prosecutrix.

30. It is further clear that the Appellant did not dispute that the Prosecutrix
was a minor before the ld. Trial Court. The defense throughout the trial was
one of false implication and not that the Prosecutrix was a major. The plea
challenging the age of the Prosecutrix has been urged for the first time during
the hearing of the present appeal.

31. The Supreme Court in Anurudh(supra), while considering the
significance of determination of the victim’s age, observed that unlike an
offender, who can claim the benefit of juvenility at any stage in view of the
beneficial nature of the Juvenile Justice Act, a victim of a crime cannot claim
to be a juvenile at any point in time, as the charges against the offender are
intrinsically tied to the age of the victim. The Court observed that if a victim
of a sexual offence is subsequently found to be below eighteen years of age,
the offence would fall under the provisions of the POCSO Act, where consent
is irrelevant and the punishment is different. Consequently, the earlier trial,
framing of charges and recording of evidence under an incorrect legal
framework could stand vitiated, necessitating reframing of charges and a fresh
trial under the correct statute.

32. In the present case, the Prosecution proved the age of the Prosecutrix
through PW-2 by producing the school admission form, admission register,
school certificate and the affidavits furnished by her parents. The testimony
of PW-2 remained unchallenged and no suggestion disputing the date of birth
was put to the witness. No evidence was led by the Appellant to establish a
different date of birth. The minor status of the Prosecutrix was never disputed
before the ld. Trial Court. In these circumstances, the challenge to the age of

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the Prosecutrix raised for the first time in the present appeal deserves to be
rejected. This Court, therefore, finds no infirmity in the finding of the ld. Trial
Court that the Prosecutrix was a minor on the date of the incident.

33. The next issue which arises for consideration is whether the prosecution
has been able to establish the commission of the offence beyond reasonable
doubt. The Appellant has assailed the prosecution case principally on the
ground that there was a delay in forwarding the biological exhibits to the
Forensic Science Laboratory and that the MLC does not record any external
injury on the person of the Prosecutrix.

34. This contention does not merit acceptance. The conviction is not
founded solely on the scientific evidence but on the consistent testimony of
the Prosecutrix, which stands corroborated by PW-3/Sister, the medical
evidence and the FSL report. The absence of external injuries, by itself, cannot
discredit an otherwise reliable prosecution case.

35. The evidence on record shows that the sealed exhibits were duly seized
and forwarded to the FSL. The FSL report records no discrepancy regarding
the condition of the seals. On the contrary, semen of the Appellant was found
on the anus of the Prosecutrix and the DNA profile generated from the
exhibits matched the DNA profile of the Appellant. The Appellant has not
been able to demonstrate that any prejudice was caused on account of the
delay in forwarding the exhibits.

36. At this stage, reference is made to the statement tendered by PW 9- Ms.
Saumya Kulsreshtha, who deposed before the ld. Trial Court in place of Dr.
Aprajita Kumari, who had prepared the MLC in this case.

37. In her statement tendered before the ld. Trial Court, PW 9, while
confirming that the MLC was drawn by Dr. Aprajita Kumari and bears her

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signature has stated that the victim’s samples were taken by Dr Aprajita
Kumari and were given to the police lady Ct Anita in sealed condition
alongwith sample seal. Relevant portion of the MLC with respect to the
handing over of victim’s sample to Ct. Anita, along with her signature is
extracted hereinbelow:

38. Further, the statement tendered before the ld. Trial Court by PW 11-
Constable Naresh Kumar, who had deposited the exhibits to the office of the
FSL has also been considered by the Court, which clearly state that till the
time he was in possession of the exhibits, they were not tampered with in any
manner. The relevant portion of statement tendered by PW 11- Constable
Naresh Kumar before the ld. Trial Court is as under:

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“Statement of Constable Naresh Kumar, No.3544,
South East, District Line, Sukhdev Vihar, New Delhi.
On SA

On 30.06.2017, I was posted in police station Jaitpur.
On that day, I had collected sealed exhibits alongwith
sample seal of this case vide road certificate
No.116/21/17 and I deposited the exhibits
in the office of FSL, Rohini. I had obtained
acknowledgement from the office of FSL which I had
give to MHCM on my return in police
station. Till, exhibits remained in my custody, they
were not tampered with in any manner.”

39. In addition to this, the statement of PW 15- Mr. Suresh Kumar Singla,
who conducted the forensic analysis in this case was also recorded by the ld.
Trial Court. In his statement, PW 15 testified to having received the samples
with their seals intact. Relevant portions of the statement tendered by PW 15
before the ld. Trial Court are extracted below:

“Statement of Sh. Suresh Kumar Singla, Retd. Sr.
Scientific Officer, Grade-I & HOD Serology, CFSL
CBI, New Delhi, R/o 185, Pocket 23,
Sector-24, Rohini-SS.

On SA.

On 30.06.2017, I was working as Jr. Chemical Forensic
Examiner in FSL, NCT of Delhi. On that day, 18 sealed
parcels were received in the office of FSL Delhi which
were marked to me for examination and opinion
thereon, the parcels were duly sealed and seals were
intact and tallied with the specimen seals forwarded, I
examined the exhibits and did biological
analysis and DNA examination of the exhibits.
Thereafter, I prepared my report which is on court

Signature Not Verified
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Signing Date:14.07.2026
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record bearing my signature at point A. The report is
now exhibits as Ex.PW15/A.

On DNA analysis, the allele from the source of exhibit
15 which is gauge cloth piece of the accused is
accounted in the exhibits No.6 which is
cotton wool swab which is defined as anal inner of the
victim.

XXXXXXX by Sh.Avinash Kumar,Ld Counsel for the
accused.

It is correct that no DNA traces of the accused was
found on Sample 7, 8, 13 & 14. It is correct that allele
is the basis unit to define as
DNA. It is wrong to say that the DNA profile of the two
brother would be the same except in the case of identical
twins. It is wrong to suggest that the
allele of two brothers can match even if the DNA profile
is different.

It is impossible to find out whether the allele of the
accused in private parts of the victim is due to the sexual
assault or due to insertion by way of any foreign article
such as injection. I received the sealed parcels
and the seals were intact.”

40. Furthermore, the FSL report prepared by PW 15, which has been
marked as PW 15/A before the ld. Trial Court also concludes as under:

“RESULTS OF DNA ANALYSIS

Alleles from the source of exhibit ’15′(Gauze cloth piece)
of accused is accounted in the alleles from the source of
exhibit ‘6’ (Anal inner) of victim.”

41. In light of the testimonies and evidence discussed above, it is clear that
the fact regarding the samples having been delivered to the Forensic Science
Laboratory with their seal intact has been proven by the prosecution before

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Signing Date:14.07.2026
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the ld. Trial Court. Further, the FSL report also clearly reveals that the sample
from the cloth recovered from the Appellant matches with the sample
obtained from the inner anal lining of the Prosecutrix. Hence, the contentions
raised by the Appellant at this stage do not merit acceptance of this Court.

42. In Edakkandi Dineshan @ P. Dineshan v. State of Kerala, (2025) 3
SCC 273, the Supreme Court reiterated that on account of defective
investigation the benefit will not inure to the accused persons on the ground
alone. The relevant portion of the same reads as under:

“27. Hence, the principle of law is crystal clear that
on the account of defective investigation the benefit
will not inure to the accused persons on that ground
alone. It is well within the domain of the courts to
consider the rest of the evidence which the
prosecution has gathered such as statement of the
eyewitnesses, medical report, etc. It has been a
consistent stand of this Court that the accused
cannot claim acquittal on the ground of faulty
investigation done by the prosecuting agency.”

43. In the present case, the ocular, medical and scientific evidence forms a
consistent chain pointing towards the guilt of the Appellant. This Court,
therefore, finds no infirmity in the finding recorded by the ld. Trial Court that
the prosecution has proved the commission of the offence beyond reasonable
doubt.

44. The next question which arises for consideration is whether the
conviction of the Appellant under Section 6 of the POCSO Act is sustainable.

45. Section 4 of the POCSO Act prescribes the punishment for penetrative
sexual assault as defined under Section 3 of the Act. Section 6, on the other
hand, is attracted only where the offence amounts to aggravated penetrative

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sexual assault as defined under Section 5. Thus, before a conviction can be
recorded under Section 6, the prosecution must establish that the case falls
within one or more of the aggravating circumstances enumerated under
Section 5.

46. Section 4 of the POCSO Act, underwent certain amendments under the
Protection of Children from Sexual Offences (Amendment) Act, 2019. The
said provision, before and after the Protection of Children from Sexual
Offences (Amendment) Act, 2019 reads as under:

BEFORE AMENDMENT i.e., prior to 16th August, 2019

Section 4 of the Protection of Children from Sexual Offences Act, 2012 –

“4. Punishment for penetrative sexual assault.–
Whoever commits penetrative sexual assault shall
be punished with imprisonment of either description
for a term which shall not be less than seven years
but which may extend to imprisonment for life, and
shall also be liable to fine.”

AFTER AMENDMENT i.e., post 16th August, 2019

Section 4 of the Protection of Children from Sexual Offences Act, 2012 –

“4. Punishment for penetrative sexual assault.–

(1)Whoever commits penetrative sexual assault
shall be punished with imprisonment of either
description for a term which shall not be less than
ten years but which may extend to imprisonment for
life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on
a child below sixteen years of age shall be punished
with imprisonment for a term which shall not be less
than twenty years, but which may extend to

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imprisonment for life, which shall mean
imprisonment for the remainder of natural life of
that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet
the medical expenses and rehabilitation of such
victim.”

As per the above amendment in Section 4 of the POCSO Act, it becomes clear
that the punishment for committing penetrative sexual assault under Section
3 of the POCSO Act pre-amendment was seven years which was then
increased to ten years.

47. Further, in the present case, the evidence led by the prosecution
establishes, at best, the commission of penetrative sexual assault. However,
there is no material on record to show that the offence was committed in any
of the circumstances contemplated under Section 5 of the POCSO Act.

48. The Prosecutrix was not below 12 years of age at the time of the
incident and, under the statutory provisions applicable on the date of the
offence, the present case would not fall within the category of aggravated
penetrative sexual assault so as to attract Section 6 of the Act. The conviction
of the Appellant under Section 6, therefore, cannot be sustained and is liable
to be modified to one under Section 4 of the POCSO Act. It is also pertinent
to mention that the offence in the present case was committed prior to the
coming into force of the Protection of Children from Sexual Offences
(Amendment) Act, 2019.

49. Under the unamended Section 4 of the POCSO Act, as applicable on
the date of the offence, the prescribed minimum sentence was seven years’

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imprisonment, which was enhanced to ten years only by virtue of the 2019
Amendment. Accordingly, the Appellant is liable to be sentenced in terms of
the provision as it stood on the date of the commission of the offence.

50. As per the Nominal Roll dated 22nd April, 2026, the Appellant has
already undergone incarceration for 8 years, 9 months and 20 days, which is
now approximately nine years. The Appellant was about 32 years of age at
the time of the incident and is presently about 41 years of age. The Nominal
Roll further reflects that his jail conduct has remained satisfactory throughout
his incarceration.

51. It is also seen from the record that the Appellant belongs to an
economically weaker section of society and is an illiterate person. He is
married and has two minor children. His wife, who is employed as a daily-
wage labourer, has been maintaining the family in his absence. The family
also comprises his aged parents, who are dependent upon the limited income
earned by his wife. The prolonged incarceration of the Appellant has placed
considerable financial hardship upon the family.

Conclusion

52. Having regard to the nature of the offence established, the modification
of the conviction from Section 6 to Section 4 of the POCSO Act, the period
of incarceration already undergone by the Appellant, his satisfactory jail
conduct and the mitigating circumstances placed on record, this Court is of
the view that that a sentence of the period already undergone would be
adequate and appropriate.

53. In view of the aforesaid facts and circumstances, the present appeal is
allowed in part. Pending applications, if any, are disposed of.

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Signing Date:14.07.2026
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54. The sentence of the Appellant is modified to the period of
imprisonment already undergone.

55. The fine imposed by the ld. Trial Court shall remain. The directions
regarding payment of compensation to the Prosecutrix shall remain in force.

56. The Appellant is directed to be released forthwith, if not required in any
other case.

57. Copy of this order be sent to the Jail Superintendent, for information
and compliance.

58. Let the copy of this order be communicated to the Secretary, DLSA
(South-East) for necessary information and compliance.

MADHU JAIN
JUDGE

PRATHIBA M. SINGH
JUDGE
JULY 14, 2026/Av

Signature Not Verified
Signed By:RENUKA
NEGI CRL.A. 427/2025 Page 24 of 24
Signing Date:14.07.2026
14:31:33

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Sudhir @ Lukka vs State (Nct Of Delhi) on 14 July, 2026

Delhi High Court