inkinccorporation@gmail.com Delhi High Court
Vikas vs State on 27 February, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.01.2026
Pronounced on: 27.02.2026
+ CRL.A. 414/2021 & CRL.M. (BAIL) 2407/2025
VIKAS ..... Appellant
Through: Mr.Ashwin Vaish, Mr.V
Thomas, Mr.Uttam Panwar,
Ms.Shubhi, Ms.Yashaswi
Dasari, Ms.Aaditya Sharma,
Advs.
versus
STATE & ANR. .....Respondents
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Mr.Atiq
Ur Rehman, Advs. and SI
Rahul Rathi, PS Sangam Vihar.
Ms.Tara Narula, Ms.Shivangi
Sharma, Mr.Shivanjali
Bhalerao, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
NAVIN CHAWLA, J.
1. The appellant has approached this Court by way of the present
appeal, assailing the Order dated 27.09.2021 passed by the learned
Additional Sessions Judge-04 (POCSO), South District, Saket Courts
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By:REYMON VASHIST
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Complex, New Delhi (hereinafter referred to as the „Trial Court‟) in
Sessions Case No. 127/2019, titled State v. Vikas, arising out of FIR
No. 564/2018, registered at Police Station Sangam Vihar, Delhi, under
Sections 376AB and 342 of the Indian Penal Code, 1860 (hereinafter
referred to as the „IPC‟) and Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (hereinafter referred to as the
„POCSO Act‟), whereby the appellant has been convicted under
Section 6 of the POCSO Act and Section 376AB of the IPC, for
committing rape on a girl below 12 years of age, and Section 342 of
the IPC for wrongfully confining the victim „A‟ (name withheld as the
victim was a minor).
2. The appellant also challenges the order on sentence dated
09.12.2021, whereby the appellant has been sentenced to undergo
rigorous imprisonment for a period of 30 years (thirty years) for the
offence under Section 376AB of the IPC, and rigorous imprisonment
for a period of 01 year (one year) for the offence under Section 342 of
the IPC, with both the sentences directed to run concurrently. A fine
of Rs. 1,000/- has also been imposed under Section 342 of the IPC,
with simple imprisonment for 15 days in default of payment of fine; a
fine of Rs. 3,02,334.61/- (Rupees Three Lakh Two Thousand Three
Hundred Thirty-Four and Sixty-One Paise) under Section 376AB of
the IPC, with simple imprisonment for two months in default of
payment of fine; and a further fine of Rs. 3,334.61/- (Rupees Three
Thousand Three Hundred Thirty-Four and Sixty-One Paise) payable
to the State towards defraying the expenses incurred in the prosecution
has also been imposed on the appellant.
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By:REYMON VASHIST
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FACTUAL BACKGROUND:
3. Briefly stated, it is the case of the prosecution that the child
victim, Ms. „A‟, along with her mother, Smt. „K‟ (name withheld to
conceal the identity of the child victim) and her father, arrived at the
police station on 24.12.2018 and disclosed an offence of „Aggravated
Penetrative Sexual Assault‟ committed upon the victim. Thereafter,
IO/W/SI Jitendra Negi (PW-5) recorded the statement/complaint of
the child victim. The child victim, along with her mother, was sent for
medical examination at the All India Institute of Medical Sciences.
After receiving the MLC of the victim, an endorsement was made on
the rukka, and the FIR was registered by the Duty Officer at
approximately 01:00 A.M. on 25.12.2018. The appellant came to the
police station along with his brother- Sh. Rakesh. The child victim
identified the appellant at the police station as ‘Chhotu Bhaiya’. The
child victim also stated that he removed her pyjama after closing the
door and inserted his penis into her vagina. The appellant was arrested
on 25.12.2018. The disclosure statement of the appellant was
recorded. The medical examination/potency test of the appellant was
conducted. The exhibits from the appellant were collected and handed
over to IO/W/SI Jitendra Negi, who seized the same. The exhibits
were deposited in the malkhana. The victim’s statement under Section
164 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as the „Cr.P.C.‟) was recorded before the learned Metropolitan
Magistrate, South District, Saket Court Complex, Delhi, on
26.12.2018. The age-related documents of the victim were obtained
from her school, showing her date of birth as 08.08.2012.
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By:REYMON VASHIST
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4. Upon completion of the investigation, a Chargesheet was filed
on 23/02/2019.
5. The learned Trial Court, vide Order dated 28.05.2019, framed
Charges under Sections 342/376AB of the IPC, read with Section 6,
read with Section 5 (m) of the POCSO Act, against the appellant, who
pleaded not guilty and claimed trial.
6. During the trial, the prosecution examined six witnesses. The
statement of the appellant under Section 294 of the Cr.P.C., regarding
admission and denial of documents, was recorded on 19.03.2021, and
thereafter, his statement under Section 313 of the Cr.P.C. was
recorded on 28.08.2021. The appellant led defence evidence and
examined one defence witness.
7. Upon conclusion of the trial, the learned Trial Court, vide Order
dated 27.09.2021, convicted the appellant and, vide order on sentence
dated 09.12.2021, imposed the sentences as noted above.
8. Aggrieved by his conviction and sentence, the appellant has
preferred the present appeal.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
APPELLANT:
9. The learned counsel for the appellant submits that there was a
violation of Section 212 of the Cr.P.C., as the order framing the
charge itself is defective. He submits that the charge failed to specify
the exact place of the alleged offence, that is, the particular floor and
room of the building where the offence was allegedly committed. He
further submits that there is a discrepancy in the statement of the
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victim herself on the place of the offence, inasmuch as it was initially
claimed that the assault took place in the room of the appellant
situated on the ground floor, whereas later the version was changed to
the first floor, where the aunt of the victim (Chachi) resides. Placing
reliance on the judgment of Main Pal v. State of Haryana, (2010) 10
SCC 130; Kalicharan & Ors. v. State of U.P., (2023) 2 SCC 583, and
Bindersingh Nirmalsingh Kaili & Anr. v. State of Maharashtra,
1998 SCC OnLine Bom 205, he submits that the place of commission
of the offence must be specifically incorporated in the charge.
10. He submits that no scale site plan was prepared. The rough site
plan was prepared at the instance of the mother of the victim (PW-3),
instead of the victim herself. It is an admitted position that PW-3 was
not a witness to the alleged crime and, therefore, was incompetent to
point out the place of the alleged incident. In support of this
contention, reliance is placed on the judgments of the Supreme Court
in State of Madhya Pradesh v. Ghudan, (2003) 12 SCC 485, and of
the High Court of Madhya Pradesh in Vijay Singh v. State of MP,
2004 SCC OnLine MP 308.
11. He submits that while it is the case of the prosecution that the
alleged offence took place between 03.00 P.M. and 04.00 P.M., the
victim was produced for medical examination only at 09.45 P.M., that
is, after a considerable delay. The Rukka (Ex.PW-5/A) was recorded
on the statement of the witness only at 01.05 A.M., reflecting a further
delay. Although it is the case of the prosecution that the child, along
with her parents, had came to the police station at around 06.00 P.M.,
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no reason has been assigned for not recording the statement of the
victim at that time.
12. He further submits that PW-3 refused the medical examination
of the victim and, for the said reason, an adverse inference is liable to
be drawn against the prosecution. In support of this submission,
reliance is placed on The State of Himachal Pradesh v. Rajesh
Kumar @ Munnu, 2025 INSC 331.
13. He further submits that although the alleged offence is stated to
have taken place in the room of the aunt of the victim, the said aunt
was never examined by the prosecution nor summoned as a Court
witness by the learned Trial Court. According to the learned counsel
for the appellant, this lapse is fatal to the prosecution‟s case. In
support, he placed reliance on the judgments of the Supreme Court in
Gaurav Maini v. State of Haryana, 2024 SCC OnLine SC 1669, and
The State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261.
14. He submits that the testimony of the defence witness, namely
Sh.Rakesh Mohan (brother of the accused) examined as DW-1, was
also wrongly discarded by the learned Trial Court only on the ground
that he is the brother of the appellant. Placing reliance on the
judgments of the Supreme Court in Mano Dutt & Anr. v. State of
U.P., (2012) 4 SCC 79, and Kartik Malhar v. State of Bihar, (1996) 1
SCC 614, he submits that the testimony of a relative cannot be
discarded merely on the ground of being an interested witness. He
further submits that DW-1 had categorically stated that, at the time of
the alleged incident, the appellant had in fact gone to the residence of
his sister who lives nearby. DW-1 also stated that at the police station,
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the victim had pointed out the helper engaged by DW-1 in his
business, namely Chotu @ Rahul as the culprit, however, the police
wrongly implicated the appellant in the present case.
15. He further submits that during the trial, the appellant was also
denied a fair opportunity to defend himself, as the appellant was not
permitted to confront the victim (PW-1) with her prior statements. In
support of this submission, reliance is placed on the judgment of the
Supreme Court in Balveer Singh (supra).
16. Without prejudice to his above submission, the learned counsel
for the appellant submits that, as per the initial version of the victim,
the appellant had merely placed his penis on the vagina of the victim.
However, in her subsequent statement, she improved upon her version
by alleging penetration. Placing reliance on the judgments of this
Court in Ram Preet v. State, 2024:DHC:9936-DB; Raja Halder v.
State NCT of Delhi, 2024:DHC:10017, and Haldar Rajbhar v. State.
2025:DHC:10674, he submits that in the absence of any medical
corroboration and in view of the victim‟s initial statement, the
appellant, at best, could be convicted under Sections 7/8 or Sections
9(m)/10 of the POCSO Act, and not under Section 6 for aggravated
penetrative sexual assault.
17. On the question of sentence, the learned counsel for the
appellant submits that at the time of commission of the alleged
offence, the minimum punishment prescribed under Section 6 of the
POCSO Act was not less than 10 years, which was subsequently
enhanced to not less than 20 years. He submits that this subsequent
enhancement appears to have influenced the learned Trial Court in
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awarding a sentence of 30 years‟ imprisonment to the appellant.
Placing reliance on the judgments of this Court in Md. Murshid v.
State of NCT of Delhi, 2025:DHC:8509, Jahangir v. State (NCT of
Delhi), 2025:DHC:8268, and Rahul v. State (NCT of Delhi), 2025
SCC OnLine Del 6517, he submits that in similar factual
circumstances, this Court has awarded a sentence of only 10 years‟
imprisonment to the accused therein.
SUBMISSIONS OF THE LEARNED APP FOR THE STATE:
18. Mr.Aman Usman, the learned APP, submits that in the present
case, the prosecution‟s case has been fully proved from the statement
of the victim (PW-1) herself. He submits that the presence of the
appellant at the house, and the fact that he had come to the house only
a few days prior to the date of the incident, stand admitted. It is for
this reason that the victim did not know the name of the appellant. No
advantage can be given to the appellant for the same. He submits that
the story set up by the appellant that it was one Chotu @ Rahul, who
had been working with the brother of the appellant for more than four
years, who was involved in the offence, stand rebutted by the fact that
the victim (PW-1) would have known about him and would have
clearly identified him, rather than the appellant herein, as the
perpetrator of the crime.
19. He further submits that much emphasis has been sought to be
laid on whether the aunt (chachi) of the victim was present in her
room and what she was doing at the time of the offence. He submits
that the same is clearly irrelevant, as the victim has stated that the
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chachi was not in the room but was bathing. Merely because this fact
was not stated in her earlier statements, cannot be termed as an
improvement or inconsistency. Even otherwise, the case set up by the
appellant before the learned Trial Court was that there was some
enmity between the parents of the victim and the aunt. In fact, the aunt
was named as a witness by the appellant, but was later dropped.
Therefore, as admittedly the aunt had not seen the incident, she was
not considered important by the prosecution. If she was so important
for the appellant, it was for the appellant to have examined her to
show her presence in the room. He submits that, therefore, merely
because the aunt was not examined, it does not in any manner come to
the aid to the appellant.
20. He further submits that it was only in the statement of the
brother of the appellant (DW-1) that, for the first time, a vague plea of
alibi was sought to be introduced by stating that the appellant had
gone to the house of his sister on the day of the incident. Apart from
this vague statement, no other evidence was led by the appellant in
support of the said plea, including the examination of the so-called
sister. He submits that, on the other hand, the statement of DW-1 also
corroborates the version of the victim and her mother (PW-3) to a
large extent, particularly with regard to the appellant being
immediately confronted after the victim reported the incident to her
mother, as well as on various other aspects.
21. He submits that merely because the mother of the victim did not
wish the victim to suffer further on account of a medical examination,
and therefore refused the same, no adverse inference can be drawn
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against the prosecution, especially when the victim, a child, has
remained steadfast in her statement. He submits that this was a case
where all the ingredients for drawing the presumption under Sections
29 and 30 of the POCSO Act were made out.
22. He further submits that the mere denial by the learned Trial
Court of permission to the appellant to put aggressive questions to the
child victim, cannot be said to amount to a denial of a fair opportunity
of defence to the appellant. He submits that in terms of Section 33 of
the POCSO Act, the powers of the Special Court are wide, and in fact,
a duty is cast upon the Special Court to ensure that the victim is not
subjected to aggressive questioning or character assassination during
the trial.
23. He submits that a mere alleged discrepancy in the statement of
the victim regarding the exact location of the offence is also of no aid
to the appellant.
24. He further submits that the statement of the victim was
consistent on the fact that the appellant had touched her vagina with
his penis. From a child of such tender age, it cannot be expected that
she would fully narrate that the penis had also entered her vagina. In
fact, this clarification came from the victim herself while recording
her testimony before the Court, and the same cannot be doubted
merely because it was not stated with such clarity in her earlier
statement.
25. On the question of sentence, placing reliance on Section 42 of
the POCSO Act, he submits that the appellant was liable to be
sentenced under Sections 376AB of the IPC, which prescribes a more
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severe punishment, and therefore, keeping in view the entirety of the
evidence on record, the learned Trial Court has rightly imposed the
sentence upon the appellant.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
VICTIM:
26. Ms.Tara Narula, the learned counsel for the victim, while
adopting the submissions of the learned APP, has further submitted
that the victim in the present case has remained steadfast on her
statement and, therefore, the conviction can be based on her sole
testimony. In support thereof, she placed reliance on the judgments of
the Supreme Court in B.C. Deva Alias Dyava v. State of Karnataka,
(2007) 12 SCC 122; Rajinder Alias Raju v. State of H.P., (2009) 16
SCC 69, and of this Court in Lokesh v. State, 2019 SCC OnLine Del
8917.
27. She submits that no benefit can be derived from minor
discrepancies in the statement of the victim. In support, she placed
reliance on the judgments of the Supreme Court in Shamim v. State
(Govt. of NCT of Delhi), (2018) 10 SCC 509; and Ganesan v. State
Represented by its Inspector of Police, (2020) 10 SCC 573, and of
this Court in Laxman v. State (Govt. of NCT of Delhi),
2020:DHC:3572.
28. She further supports the learned APP in submitting that this is a
fit case where the presumption of guilt under Section 29 of the
POCSO Act was liable to be drawn, and the same has not been
rebutted by the appellant. In support, she placed reliance on the
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judgment of the Supreme Court in Attorney General for India v.
Satish, (2022) 5 SCC 545.
29. On the question of there being no penetration, she placed
reliance on the judgments of the Supreme Court in Madan Gopal
Kakkad v. Naval Dubey & Anr., (1992) 3 SCC 204; and in State of
U.P. v. Babul Nath, (1994) 6 SCC 29, to submit that it is not
necessary that there should be complete penetration of the male organ,
as even partial or slight penetration is sufficient to constitute the
offence of rape. She submits that it is equally not necessary that the
victim must suffer injuries, as in the case of a child victim, it is quite
possible that no injury is sustained. In fact, placing reliance on
Parikh‟s textbook Medical Jurisprudence, Forensic Medicine and
Toxicology, she submits that in a young child, as the vagina is very
small and the hymen is deeply situated, therefore, penetration by an
adult penis may not be possible.
ANALYSIS AND FINDINGS:
30. We have considered the submissions made on behalf of the
appellant, the victim, and the State, and have perused the material
available on record.
31. The prime witness in the present case is the victim herself, who
was around 6 years old on the day of the incident. She was examined
as PW-1. She stated that the building in which she was residing
consisted of three floors. She stated that she, along with her parents
and brother, was residing on the first floor of the building. The aunt
(chachi) was residing separately in the middle room on the first floor
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of the building, while her friend „A‟, along with her brother „R‟, and
their parents, was residing on the ground floor of the building. She
states that on the day of the incident, after coming back from school,
she was playing with „A‟, when the appellant, whom she identified in
Court, called her to the room and sent „A‟ outside the room. He
thereafter bolted the room from inside and took off his pants and the
pyjama of PW-1. He made her sit on a sofa and then kissed her on the
lips. In the later part of her statement, she further stated that “after
putting off my pajama, “bhaiya ne apni susu wali jagah ko mere susu
wali jagah me dala” due to which I felt a little pain. “maine jab pucha
kya kar rahe ho to bhaiya ne kaha kuch nahi”. She stated that she
shouted for help by calling “Chachi-Chachi” but at that time she was
taking bath, and she might not have listened to her voice. She further
states that „A‟ knocked on the door, on which the appellant wore his
pants and put on her pyjama. As he opened the door, „A‟ fell down on
the floor. She immediately went upstairs. The appellant asked her to
come back, however, she went to her mother and informed her of the
happenings. Her mother called the appellant through her brother. The
appellant came up and the mother confronted him. Thereafter, PW-1,
along with her parents and the father of „A‟, and the appellant, went to
the police station, where they made a complaint. She was taken to the
hospital along with her mother and a woman constable for her medical
examination. The next day her statement was also recorded before the
Magistrate. Her mother showed the spot of the incident to the police.
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32. In her cross-examination, she states that the appellant used to
reside at some other place and had come to stay with the family of „A‟
on the morning of the day of the incident.
33. Ms. „K‟ (mother of the victim) was examined as PW-3. She
deposed that on December 24, 2018, at approximately 3:00-3:30 P.M.,
her daughter/ victim was playing with her friend „AR‟ on the staircase
of her aunt’s (Chachi’s) residence, which led to the first floor. The
staircase provided access to all floors of the building. Her family
resided on the second floor, ‘AR’ lived on the ground floor, and her
daughter’s aunt lived on the first floor. She testified that her daughter
came to her and reported that while playing with ‘AR’, the uncle
(Chacha) of ‘AR’ came and told ‘AR’ to go to her ground floor room
and took victim ‘A’ by the hand to her aunt’s room and latched the
door from inside. The appellant removed her underwear and pyjamas,
as well as his own pants, and then inserted his private part into hers.
The victim told him that she was in severe pain and asked him not to
do this. The appellant also kissed victim „A‟ on the lips. ‘AR’ came to
the room and repeatedly knocked on the door. The appellant opened it
after some time, and due to the force, ‘AR’ fell on the floor. The victim
left through the other side of the door and ran to PW-3. The appellant
followed her, asking her to come to him and not to go upstairs. The
victim was very frightened and told PW-3 of the happenings. PW-3
went to the house of the father of „AR‟ and asked who was residing
with him. She informed him that the said person, called Chotu, had
committed a „wrong act‟ (Galat Kaam) with her daughter and narrated
the incident. He called Chotu and confronted him, but the appellant
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denied everything. She then called her husband, and she along with
the victim went to the police station, while her husband reached there
from his office. She later came to know that the appellant was the
brother of the father of „AR‟.
34. She testified that at the police station, a female officer first
questioned her, and then called her daughter to inquire about the
incident. Victim „A‟ gave her statement, and both signed it. The police
then called the appellant to the police station. Initially, he remained
silent, then denied the allegations, however, the female officer later
informed her that the appellant had confessed after she left the room.
The police took her and victim „A‟ to AIIMS for medical examination,
however, she refused the internal/gynaecological examination of her
daughter to avoid causing her further pain and provided written refusal
as she did not want her to suffer more pain.
35. She states that the next day, she, victim „A‟, her husband, and a
female police officer went to the Court for recording statements under
Section 164 of the Cr.P.C. She also identified the appellant in court.
36. She admitted that she only occasionally used to speak to the
aunt of victim „A‟. She further stated that she had seen the appellant
playing with victim „A‟ on the staircase and came to know that he had
come to the ground floor. It is from this that she knew that the victim
was referring to the appellant as „Chotu Bhaiya‟. She admitted that she
had not noticed any injury on or near the vagina or any part of the
body of the victim, nor saw any blood. She denied the suggestion that
the boy „Rahul‟ was called as „Chotu‟ by the brother of the appellant
and his family.
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37. PW-1 and PW-3, in their testimony, are consistent and inspire
confidence. Though the learned counsel for the appellant has
strenuously urged that there were contradictions in the statement of
the victim (PW-1) recorded before the doctor at the time of her MLC
and the statement recorded under Section 164 of the Cr.P.C., when
compared with her statement before the learned Trial Court, we do not
find any such inconsistency that would make us doubt the veracity of
her statement. A child victim is not expected to narrate the incident
each time like a parrot. We must be mindful of the age of the victim
and the mental trauma she must have been undergoing when she was
taken to the hospital for her MLC and later to the Magistrate for
recording her statement under Section 164 of the Cr.P.C.
38. PW-3 (the mother) has also been consistent in her statements to
the police, before the learned Metropolitan Magistrate, and before the
learned Trial Court.
39. In contrast, the appellant, through DW-1, sought to set up a plea
of alibi by stating that the appellant had gone to his sister‟s house on
the day of the incident. Apart from the fact that the sister was not
examined as a witness, even otherwise, the said plea of alibi does not
inspire confidence. It is not that the statement of DW-1 is to be
ignored merely because he is a relative of the appellant; on the
contrary, the testimony of DW-1, to a large extent, corroborates the
statements of PW-1 and PW-3. DW-1 states that the mother of the
victim came to their house along with ‘A’ and stated, „Tumhare ladke
ne meri beti ke saath yeh kya kiya‟. She further stated, „woh ladka
floor par aaya tha aur meri beti ko galat bola tha‟. He further states
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that thereafter, the mother of the victim started threatening him and
stated that she would call the police. DW-1 replied that he himself was
ready to go to the police station and, accordingly, he went to the police
station along with his brother (the appellant) and Chotu @ Rahul. In
the meantime, „A‟, along with her mother „K‟, father, and brother, also
reached the police station. At the police station, after some
interrogation, the Investigating Officer told DW-1 and his help, Chotu
@ Rahul, to go home, while the appellant was asked to remain at the
police station. DW-1 accordingly left the police station. He admitted
that he did not make any complaint to any senior police officer or
inform any court alleging that the appellant was being falsely
implicated in the present case.
40. The above statement of DW-1 clearly corroborates the
testimony of the victim and her mother on vital aspects, including the
facts that an immediate allegation of the appellant being the person
who did something wrong with the victim being attributed to the
appellant, and that the appellant was taken to the police station, where
he was apprehended.
41. Though an attempt was made to raise a defence that the offence
had been committed by Chotu @ Rahul, a helper who had been
staying in the house of DW-1, the said defence stands falsified by the
admissions made by DW-1 himself. DW-1 stated that he had told the
mother of the victim that the offence could not have been committed
by the appellant, as the appellant had just returned from his sister‟s
house. If no accusation had been made against the appellant, there was
no reason for him to offer such an explanation to the mother, who had
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confronted him immediately after the incident. Further, there is no
explanation as to why DW-1 went to the police station along with the
appellant, or why the police detained the appellant and not Chotu @
Rahul?
42. The statement of the appellant was recorded under Section 313
of the Cr.P.C. on 28.08.2021. In his statement, the appellant admitted
that immediately after the incident, the brother of the victim came and
asked him to come to the victim‟s house. When he went there, the
mother of the victim told him that he had to go to the police station
and also slapped him. She then took the appellant to the house of DW-
1 (his brother), who also slapped him. When asked whether, at the
police station, the victim had identified him as “Chhotu Bhaiya”, he
stated that he did not remember. He further admitted that he was
thereafter arrested. The said statement, therefore, also corroborates the
testimony of the victim and her mother to a large extent.
43. Sections 29 and 30 of the POCSO Act are set out below:
“29. Presumption as to certain offences.
Where a person is prosecuted for committing
or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that
such person has committed or abetted or
attempted to commit the offence, as the case
may be unless the contrary is proved.
30. Presumption of culpable mental state.
(1) In any prosecution for any offence under
this Act which requires a culpable mental state
on the part of the appellant, the Special Court
shall presume the existence of such mental
state but it shall be a defence for the appellant
to prove the fact that he had no such mentalSignature Not Verified
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state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is
said to be proved only when the Special Court
believes it to exist beyond reasonable doubt
and not merely when its existence is
established by a preponderance of probability.
Explanation.- In this section, “culpable
mental state” includes intention, motive,
knowledge of a fact and the belief in, or reason
to believe, a fact.”
44. In light of the above provisions, the prosecution has established
the foundational facts, namely, that the victim was a minor, that she
gave a consistent account of sexual assault, and that such account
stands corroborated by the statements of the appellant as well as DW-
1, the statutory presumptions under Sections 29 and 30 of the POCSO
Act stand attracted. The burden, therefore, shifts upon the appellant to
rebut these presumptions. However, as will be discussed in the
subsequent portion of this judgment, the appellant has failed to do so.
45. The submission of the learned counsel for the appellant that
there was an inconsistency with respect to the place of the incident, is
ill-founded. Though the MLC report mentions that the alleged incident
took place at the house of the appellant, in her statement before the
learned Metropolitan Magistrate, the victim stated that the appellant
had taken her to the room of her aunt‟s son, and when he attempted to
commit the act, she cried out for her aunt. Even in the rough sketch of
the site plan, it is the room of the aunt that is shown as the place of
occurrence.
46. Coming to the alleged ambiguity in the Charge with regard to
the place of the offence, it has not been shown as to what prejudice, if
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any, was caused to the appellant during the trial on account of the
same. Section 215 of the Cr.P.C., which deals with errors or omissions
in a Charge, provides that such errors or omissions shall not vitiate the
trial, unless the accused is shown to have been misled by such error or
omission and unless it has occasioned a failure of justice. In the
present case, neither can the appellant be said to have been misled by
the omission to mention the exact location of the commission of the
crime, nor do we find that any failure of justice was occasioned by
such omission in the charge. We quote Section 215 of the Cr.P.C. as
under:-
” 215. Effect of errors.– No error in stating
either the offence or the particulars required
to be stated in the charge, and no omission to
state the offence or those particulars, shall be
regarded at any stage of the case as material,
unless the accused was in fact misled by such
error or omission, and it has occasioned a
failure of justice.”
47. In Bindersing (supra), a case arising out of the NDPS Act, the
Charge was defective not only for not specifying the place of the
offence, but also for failing to mention the time when the raid was
carried out and the quantity of contraband seized.
48. In Main Pal (supra), the allegation against the accused was of
outraging the modesty of P, but the conviction was for outraging the
modesty of S. The prejudice to the accused was, therefore, writ large.
49. Similarly, in Kalicharan (supra), a charge of murdering the
deceased by firing bullets from a pistol was framed against A2,
however, it was found that the deceased had been murdered by A1,
A3, and A4 using sharp weapons. The Court held that, in the absence
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of such a Charge against them, and as the case was not put to them
under Section 313 of the Cr.P.C., their conviction could not be
sustained.
50. The cited cases, therefore, have no application to the facts of the
present case.
51. Similarly, the submission of the learned counsel for the
appellant that the site plan could not have been prepared at the
instance of the mother of the victim pointing out the place of
occurrence, or that no scaled plan was prepared, does not also appeal
to us. Once again, the appellant has been unable to demonstrate any
prejudice caused to him on account of the above. In Gaudhan (supra),
the question of the presence of light was vital to the case, and its
omission was found to be fatal to the prosecution. In Vijay Singh
(supra), the Court found serious discrepancies between the statement
of the witness and the site plan. These judgments, therefore, do not
come to the aid of the appellant.
52. As regards the submission of the learned counsel for the
appellant that an adverse inference ought to be drawn against the
prosecution since the mother of the victim had refused consent for the
internal medical examination of the child victim, we find no merit in
the said contention. PW-3 has herself explained that she did not wish
the victim to undergo further trauma by being subjected to such a
medical examination. This explanation does not appear to be unnatural
on the part of the mother. In any event, once the testimony of the
victim is found to be truthful and consistent, the mere refusal to permit
a medical examination cannot be fatal to the prosecution case.
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53. In B.C. Deva (supra), it has been held that even in the absence
of corroboration of medical evidence, the oral testimony of the victim,
if found to be cogent, reliable, convincing, and trustworthy, can be
safely relied upon. In Shamim (supra), the Supreme Court has held as
under:
“12. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
inspires confidence. Once that impression is
formed, it is undoubtedly necessary for the
court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find
out whether it is against the general tenor of
the evidence and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief. Minor
discrepancies on trivial matters not touching
the core of the case, hypertechnical approach
by taking sentences torn out of context here or
there from the evidence, attaching importance
to some technical error without going to the
root of the matter would not ordinarily permit
rejection of the evidence as a whole. Minor
omissions in the police statements are never
considered to be fatal. The statements given by
the witnesses before the police are meant to be
brief statements and could not take place of
evidence in the court. Small/trivial omissions
would not justify a finding by court that the
witnesses concerned are liars. The prosecution
evidence may suffer from inconsistencies here
and discrepancies there, but that is a
shortcoming from which no criminal case is
free. The main thing to be seen is whether
those inconsistencies go to the root of the
matter or pertain to insignificant aspects
thereof. In the former case, the defence may be
justified in seeking advantage of incongruities
obtaining in the evidence. In the latter,Signature Not Verified
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however, no such benefit may be available to
it.”
54. In Balveer Singh (supra), the Supreme Court emphasised the
precautions to be followed while recording the testimony of a child
witness. It was further emphasised that if the child witness is not
found to have been tutored, his or her testimony can be relied upon
without insisting on further corroboration. We quote from the
judgment as under:
“58. We summarize our conclusion as under: –
(I) The Evidence Act does not prescribe any
minimum age for a witness, and as such a
child witness is a competent witness and his or
her evidence and cannot be rejected
outrightly.
(II) As per Section 118 of the Evidence Act,
before the evidence of the child witness is
recorded, a preliminary examination must be
conducted by the Trial Court to ascertain if the
child-witness is capable of understanding
sanctity of giving evidence and the import of
the questions that are being put to him.
(III) Before the evidence of the child witness is
recorded, the Trial Court must record its
opinion and satisfaction that the child witness
understands the duty of speaking the truth and
must clearly state why he is of such opinion.
(IV) The questions put to the child in the
course of the preliminary examination and the
demeanour of the child and their ability to
respond to questions coherently and rationally
must be recorded by the Trial Court. The
correctness of the opinion formed by the Trial
Court as to why it is satisfied that the child
witness was capable of giving evidence may be
gone into by the appellate court by either
scrutinizing the preliminary examination
conducted by the Trial Court, or from the
testimony of the child witness or theSignature Not Verified
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demeanour of the child during the deposition
and cross-examination as recorded by the
Trial Court.
(V) The testimony of a child witness who is
found to be competent to depose i.e., capable
of understanding the questions put to it and
able to give coherent and rational answers
would be admissible in evidence.
(VI) The Trial Court must also record the
demeanour of the child witness during the
course of its deposition and cross-examination
and whether the evidence of such child witness
is his voluntary expression and not borne out
of the influence of others.
(VII) There is no requirement or condition that
the evidence of a child witness must be
corroborated before it can be considered. A
child witness who exhibits the demeanour of
any other competent witness and whose
evidence inspires confidence can be relied
upon without any need for corroboration and
can form the sole basis for conviction. If the
evidence of the child explains the relevant
events of the crime without improvements or
embellishments, the same does not require any
corroboration whatsoever.
(VIII)Corroboration of the evidence of the
child witness may be insisted upon by the
courts as measure of caution and prudence
where the evidence of the child is found to be
either tutored or riddled with material
discrepancies or contradictions. There is no
hard and fast rule when such corroboration
would be desirous or required, and would
depend upon the peculiar facts and
circumstances of each case.
(IX) Child witnesses are considered as
dangerous witnesses as they are pliable and
liable to be influenced easily, shaped and
moulded and as such the courts must rule out
the possibility of tutoring. If the courts after a
careful scrutiny, find that there is neither anySignature Not Verified
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tutoring nor any attempt to use the child
witness for ulterior purposes by the
prosecution, then the courts must rely on the
confidence-inspiring testimony of such a
witness in determining the guilt or innocence
of the accused. In the absence of any
allegations by the accused in this regard, an
inference as to whether the child has been
tutored or not, can be drawn from the contents
of his deposition.
(X) The evidence of a child witness is
considered tutored if their testimony is shaped
or influenced at the instance of someone else
or is otherwise fabricated. Where there has
been any tutoring of a witness, the same may
possibly produce two broad effects in their
testimony; (i) improvisation or (ii) fabrication.
(i) Improvisation in testimony whereby
facts have been altered or new details
are added inconsistent with the version
of events not previously stated must be
eradicated by first confronting the
witness with that part of its previous
statement that omits or contradicts the
improvisation by bringing it to its notice
and giving the witness an opportunity to
either admit or deny the omission or
contradiction. If such omission or
contradiction is admitted there is no
further need to prove the contradiction.
If the witness denies the omission or
contradiction the same has to be proved
in the deposition of the investigating
officer by proving that part of police
statement of the witness in question.
Only thereafter, may the improvisation
be discarded from evidence or such
omission or contradiction be relied
upon as evidence in terms of Section 11
of Evidence Act.
(ii) Whereas the evidence of a child
witness which is alleged to be doctored
or tutored in toto, then such evidence
may be discarded as unreliable only if
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the presence of the following two factors
have to be established being as under: –
• Opportunity of Tutoring of the Child
Witness in question whereby certain
foundational facts suggesting or
demonstrating the probability that a
part of the testimony of the witness
might have been tutored have to be
established. This may be done either by
showing that there was a delay in
recording the statement of such witness
or that the presence of such witness was
doubtful, or by imputing any motive on
the part of such witness to depose
falsely, or the susceptibility of such
witness in falling prey to tutoring.
However, a mere bald assertion that
there is a possibility of the witness in
question being tutored is not sufficient.
• Reasonable likelihood of tutoring
wherein the foundational facts
suggesting a possibility of tutoring as
established have to be further proven or
cogently substantiated. This may be
done by leading evidence to prove a
strong and palpable motive to depose
falsely, or by establishing that the delay
in recording the statement is not only
unexplained but indicative and
suggestive of some unfair practice or by
proving that the witness fell prey to
tutoring and was influenced by someone
else either by cross-examining such
witness at length that leads to either
material discrepancies or
contradictions, or exposes a doubtful
demeanour of such witness rife with
sterile repetition and confidence lacking
testimony, or through such degree of
incompatibility of the version of the
witness with the other material on
record and attending circumstances that
negates their presence as unnatural.
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(XI) Merely because a child witness is found to
be repeating certain parts of what somebody
asked her to say is no reason to discard her
testimony as tutored, if it is found that what is
in substance being deposed by the child
witness is something that he or she had
actually witnessed. A child witness who has
withstood his or her cross-examination at
length and able to describe the scenario
implicating the accused in detail as the author
of crime, then minor discrepancies or parts of
coached deposition that have crept in will not
by itself affect the credibility of such child
witness.
(XII) Part of the statement of a child witness,
even if tutored, can be relied upon, if the
tutored part can be separated from the
untutored part, in case such remaining
untutored or untainted part inspires
confidence. The untutored part of the evidence
of the child witness can be believed and taken
into consideration or the purpose of
corroboration as in the case of a hostile
witness.”
55. On the plea of the learned counsel for the appellant that the
learned Trial Court did not permit the child witness to be confronted
with her previous statements, we must once again emphasise that no
prejudice has been caused to the appellant on account of the same. In
fact, such confrontation would have afforded the child witness an
opportunity to explain her statement. On the contrary, by not
permitting the child witness to be confronted with her previous
statements, the learned Trial Court denied her the opportunity to
explain any perceived discrepancy that may have existed between the
two statements. The learned Trial Court proceeded on the basis that
the child had either not stated or differently stated the facts in her
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previous statements. Therefore, the purpose of the appellant
confronting the victim with her previous statements was met. In this
regard, we must also be mindful of the mandate of Section 33(6) of
the POCSO Act, which casts a duty upon the Special Court to not
permit aggressive questioning or character assassination of the child
and to ensure that the dignity of the child is maintained at all times
during the trial.
56. The learned counsel for the appellant has also contended that
although the offence is alleged to have taken place between 3.00 P.M.
and 4.00 P.M., the medical examination of the victim was conducted
only at about 9.00 P.M., and the rukka was registered at 1.05 A.M. on
the following day. It has been submitted that there was an inordinate
delay, thereby suggesting a false implication of the appellant. We are
not impressed with the said submission. As noted hereinabove, the
victim and her mother have clearly explained the entire sequence of
events from the occurrence of the incident, the taking of the child to
the police station, thereafter to the hospital, and subsequently back to
the police station. The said sequence stands corroborated not only by
the testimony of DW-1, but also by the appellant‟s own statement, as
discussed hereinabove.
57. The submission of the learned counsel for the appellant that the
aunt was not examined as a witness, also does not impress us. As per
the prosecution, the said aunt neither witnessed the incident nor any
events immediately thereafter and, therefore, was not a material
witness for the prosecution. In fact, during the trial, the appellant
sought to suggest that he had been falsely implicated due to a dispute
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between the parents of the victim and the family of the aunt regarding
the tenancy of the appellant‟s brother. If that were so, it was
incumbent upon the appellant to produce the aunt as a witness.
Although she was named as one of the defence witnesses, she was
ultimately not examined. Any presumption, if at all, would therefore
operate against the appellant.
58. In Gaurav Maini (supra), the grandfather of the kidnapped boy,
who was the first person to disclose the incident to the police, had not
been examined. The Court held that it was an obligation of the Court
under Section 311 of the Cr.P.C. and Section 165 of the Indian
Evidence Act, 1872, to ensure that neither any extraneous material is
permitted to be brought on record nor any relevant fact is left out. As
noted above, in the present case, it was not the case of the prosecution
that the aunt had witnessed anything and, therefore, according to the
prosecution, she was not a crucial witness.
59. Now we come to the submission of the learned counsel for the
appellant that in the MLC of the victim, no injury was found on her
and that there was no bleeding, which, according to him, would have
indicated penetration. He has submitted that in her statement before
the learned Metropolitan Magistrate, the victim had stated that the
appellant had placed his penis on her vagina and had not stated that
there was penetration, and further, the clothes of the victim or of the
appellant were not seized by the police, which, according to the
learned counsel, would have shown whether penetration had in fact
taken place, thereby implying that no penetration had occurred. On the
basis of the above submissions, it has been argued that the appellant
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could not have been convicted under Section 6 of the POCSO Act for
„aggravated penetrative sexual assault‟ and that, at best, the offence
would fall under Section 7 of the POCSO Act, relating to „sexual
assault‟, or under Section 18 of the POCSO Act, relating to an
„attempt to commit aggravated penetrative sexual assault‟.
60. In her statement to the police (Ex.PW1/A), the victim had stated
that the appellant started putting his penis into her vagina. The
relevant extract is reproduced hereinbelow:
61. In her statement under Section 164 of the Cr.P.C. (Ex. PW1/C),
victim (PW-1) again stated as under:
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62. Similarly, in her statement before the Court, that PW-1 first
stated as follow:
“….Thereafter, he bolted the room from inside,
he took out his pant. He also took out my
Pajama. “Bhaiya ne mujhe sofe pe baithaya or
phir bhaiya ne mere lips pe data
lagaya”…..After some time my friend “A”
knocked the door, Bhaiya ne apna pant pehna
or mujhe bhi pajama pehnaya”….”
63. It is only in the later part of her testimony, that PW-1 further
stated as under:
“After putting off my pajama “bhaiya ne apni
susu wali jagah ko mere susu wali jagah me
dala” due to which I felt little pain.”
64. Though the learned counsel for the appellant submitted that the
above statements of the victim appeared to be in response to direct
questions put either by the Court or by the learned Prosecutor, no such
objection was recorded before the learned Trial Court. It appears that
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the victim, on her own, made the above statement upon recollecting
the incident during the course of recording of her testimony.
65. At the same time, the above three statements create a doubt as
to whether there was actual penetration in the present case. The
benefit of such doubt must necessarily go to the appellant. In the
absence of proof of penetration, and in view of the consistent
statements of the victim that the appellant had at least removed the
victim‟s pyjama and his own pant and placed his penis on the vagina
of the victim before the friend of the victim intervened by knocking on
the door, thereby preventing the appellant from completing the act, we
hold that the appellant is guilty of an attempt to commit aggravated
penetrative sexual assault and is, therefore, liable to be punished under
Section 18 of the POCSO Act. While there is no doubt that even the
slightest penetration of the penis into the vagina, without rupturing the
hymen, would constitute Aggravated Penetrative Sexual Assault,
however, from the above stray statement of the victim, we are unable
to conclude that there was a penetrative sexual assault upon the victim
in the present case. The judgment of Madan Gopal Kakkad (supra),
therefore, does not come to the assistance of the prosecution.
66. Accordingly, we set aside the conviction of the appellant under
Section 6 of the POCSO Act and under Section 376AB of the IPC,
and instead hold him guilty under Section 18 of the POCSO Act.
67. At the relevant time, the punishment prescribed for aggravated
penetrative sexual assault under Section 6 of the POCSO Act was
imprisonment for a term not less than ten years, which may extend to
imprisonment for life. Keeping in view the totality of circumstances,
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including the age of the victim, we reduce the sentence of the
appellant to ten years‟ rigorous imprisonment.
68. Insofar as the conviction of the appellant under Section 342 of
the IPC is concerned, the same is upheld, along with the sentence
imposed thereunder.
69. All sentences shall run concurrently.
70. In case the appellant had not undergone the aforesaid period of
sentence prior to the suspension of his sentence by this Court, the
appellant shall surrender on his own within two weeks from today to
undergo the remaining period of sentence. In the event of failure to
surrender within two weeks of the date of this judgment, appropriate
steps shall be taken by the State to ensure his arrest for undergoing the
remaining sentence.
71. The remaining directions of the learned Trial Court in the order
on sentence, that is, with respect to the fine amount and compensation
in terms of the Victim Compensation Scheme, are also sustained.
72. The present appeal is partly allowed in the above terms. All
pending applications, if any, are also disposed of having been
rendered infructuous.
73. A copy of this judgment be communicated to the learned Trial
Court and the concerned Jail Superintendent.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
FEBRUARY 27, 2026/Arya/DG
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