Delhi High Court
Wahid Khan vs State on 7 August, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.08.2026
Judgment Pronounced on: 07.08.2026
# CNR No. DLHC010348712019
+ CRL.A. 971/2019
WAHID KHAN .....Appellant
Through: Mr. Kanhaiya Singhal, Mr. Prasanna,
Mr. Ajay Kumar, Ms. Avantika
Shankar and Ms. Shatakshi Singh,
Advocates.
Versus
STATE .....Respondent
Through: Mr. Utkarsh, APP for State with SI
Ekta Chauhan, P.S. Mayur Vihar.
Ms. Tara Narula and Mr.
Harshvardhan Jain, Advocates for
R-2/victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 374(2) of the Criminal
Procedure Code, 1973 (the Cr.P.C.) has been filed by the sole
accused, in Sessions Case No. 1711/2016 on the file of the Special
Judge, PoCSO Act, East District, Karkardooma Courts, Delhi,
assailing the judgment dated 04.05.2019 and order on sentence
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dated 08.05.2019 as per which he has been convicted for the
offences punishable under Section 5(l) read with Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (the
2. The prosecution case is that approximately 07 to 08
months immediately preceding 20.11.2015 at Jhuggi E-37/22A,
Sanjay Camp, Trilok Puri, Delhi, the accused repeatedly
committed aggravated penetrative sexual assault on PW1, a minor
girl aged about 14 years. Hence, as per the charge-sheet/final
report, the accused is alleged to have committed the offences
punishable under Sections 376, 342, 354C and 506 of the Indian
Penal Code, 1860 (IPC) and Section 4 of the PoCSO Act.
3. On the basis of Ext. PW1/A FIS/FIR of PW1, given on
20.11.2015, Crime No. 735/2015, Mayur Vihar police station i.e.
Ext. PW6/A FIR was registered by PW6, Constable. PW12,
Woman Sub-Inspector, conducted investigation into the crime and
on completion of the same, filed the chargesheet/final report
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against the accused alleging the commission of the offences
punishable under abovementioned sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him as
contemplated under Section 207 CrPC. After hearing both sides,
the trial court, vide order dated 12.07.2016, framed a Charge under
Section 5(l) read with 6 of the PoCSO Act. The Charge was read
over and explained to the accused, to which he pleaded not guilty.
5. On behalf of the prosecution, PWs 1 to 13 were
examined and Exts. PW1/A-B, PW 2/A-B, PW3/A, PW5/A-C,
PW6/A-C, PW7/A-D, PW9/A, PW11/A-E, PW12/A-I, Mark
PW12/B-D and P-4 were marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) CrPC regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. The accused submitted that he had not
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committed any offence and has been falsely implicated in the
present case. Infact, the father of PW1 had borrowed a sum of
₹2,00,000/- from him on interest. Some others also, namely, Bony,
Mirchi and Dilshad, had also borrowed some money from him. As
they did not want to return his money, they conspired with the
father of PW1 to falsely implicate him in the present case.
7. After questioning the accused under Section 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232 CrPC
is seen done by the trial court. However, non-compliance of the
said provision does not, ipso facto vitiate the proceedings, unless
omission to comply with the same is shown to have resulted in
serious and substantial prejudice to the accused (See Moidu K. v.
State of Kerala, 2009 SCC OnLine Ker 2888 : 2009 (3) KHC
89). Here, the accused has no case that non-compliance of Section
232 Cr.P.C. has caused any prejudice to him.
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8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court
vide impugned judgment dated 04.05.2019 held the accused guilty
of the offence punishable under Section 5(l) read with Section 6 of
the PoCSO Act. Accordingly, vide order on sentence dated
08.05.2019, the accused has been sentenced to rigorous
imprisonment for a period of 12 years as well as fine ₹10,000/- and
in default of payment of fine, to simple imprisonment for two
months. Aggrieved, the accused has come up in appeal.
10. It was submitted by the learned counsel for the
appellant/accused that the impugned judgment is contrary to the
facts and circumstances of the case and is bad in law, as the trial
court failed to properly appreciate the evidence on record. The
prosecution failed to prove that PW1 was a minor at the time of the
incident. The school admission records relied upon by the
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prosecution were not a reliable proof of age, as it was based only
on Ext. PW7/C affidavit submitted by PW2, the mother, and not on
any authentic birth record issued by a competent municipal
authority or gram panchayat. It was further pointed out that the
admission record was from the second school attended by PW1,
whereas the records of her first school were never produced. PW2,
the mother of PW1, had herself admitted that the birth of PW1 had
never been registered with any government authority and that only
janam patri had been prepared, which was also not produced
before the Court.
10.1. It was submitted that the prosecution failed to establish
the place of occurrence, as no investigation was conducted to
prove that the house in which the alleged offence had been
committed was occupied by the appellant/accused. There is also no
independent evidence to show that the appellant/accused had ever
visited the house of PW1. Further, there was an unexplained delay
of seven months in lodging the FIR.
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10.2. The learned counsel submitted that photographs
contained in the mobile phone were never shown to or identified
by PW1 or PW2, her mother, during their examination, and merely
exhibiting the photographs through the Investigating Officer
(PW12) would not establish that the person depicted in the
photographs is PW1. It was further submitted that the recovery of
the mobile phone was doubtful and that there were material
inconsistencies between the testimony of PW12, the IO and PW5,
the seizure witness. While PW12 claimed that she had examined
the mobile phone at the spot and seen the photographs before
seizing it, PW5 stated that the phone was never opened or
examined by PW12 in his presence before it was sealed. Further,
chain of custody has not been proved properly as the malkhana
register was not produced before the court.
10.3. Regarding sentencing, it was submitted by the learned
counsel that the minimum prescribed sentence under Section 6 of
the PoCSO Act at the time of the incident and before 20.11.2015
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was 10 years. It was prayed that the sentence be modified to the
statutory minimum of 10 years.
11. Per contra, it was submitted by the learned Additional
Public Prosecutor and the learned counsel for the prosecutrix that
there is no infirmity in the impugned judgment calling for an
interference by this Court. The materials on record, according to
the prosecutor, are sufficient to convict the accused. It was
submitted that while the defence attempted to dispute Ext. PW7/C
affidavit, they failed to ask a single question during cross-
examination. At no point during the entire trial, including during
313 statement of the accused, the identity of the person in the
photograph was disputed. The testimony of PW12, the IO, who
directly observed the photographs on the phone at the time of
seizure, constitutes substantive direct evidence under Section 60 of
the Indian Evidence Act. Further, forcing a victim to view explicit
images in the court for identification is legally unnecessary and
morally improper, especially when the identity is independently
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established by the officer and the FSL expert. Therefore, the
conviction and sentence awarded by the trial court ought to be
upheld.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in this
appeal is whether there is any infirmity in the impugned judgment
warranting an interference by this Court.
14. I shall briefly refer to the evidence on record relied on
by the prosecution in support of the case. Ext. PW1/A FIS/FIR
given on 20.11.2015 by PW1 in Hindi, translated reads thus: – “I
have 3 siblings, and I am the eldest of the four children. We live on
rent. I am studying in the 9th standard at the Government School,
Block 27, Trilok Puri. My friend Zeenat, R/o Block 15, Trilok Puri,
is my classmate. She got married to a boy named Siraj and shifted
to her in-laws’ place at Jhuggi No. E-37/22 A, Sanjay Camp, Trilok
Puri. I visit her in-laws’ place sometimes. Zeenat’s father-in-law
Wahid Khan, aged 60 years, used to live with them. About 7-8
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months ago, I was sitting outside my house when Wahid Khan
passed through and told me that Zeenat was calling me. I told him
that I would meet her. Thereafter, he went on his way. 15-20
minutes later, at around 2 PM, I reached Zeenat’s house to meet
her. When I peeped inside her room, I found it empty. Suddenly,
Zeenat’s father-in-law, Wahid Khan came from behind, latched the
room and locked it. I was taken aback. I questioned his act and
asked him tolet me go home and where Zeenat was. Wahid Khan
grabbed me by my hand and pushed me onto the bed. When I cried
and protested, he asked me to keep my mouth shut and to do as he
said. He pulled off my pajamas. When I began to scream, he
clamped my mouth with his hand. He climbed on to me, unzipped
his pants and proceeded to rape me. As I was being raped, I
experienced pain in my private part. I tried to fend him off with all
my might, but I failed. After raping me, he took my nude picture on
his mobile phone. I began to bleed from my private part. Wahid
Khan threatened me that if I disclosed the incident to others, he
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would show my nude photo to everybody and also kill my siblings.
I was unable to speak due to fear. Thereafter, Wahid Khan
unlocked the door and I came back home and did not disclose the
incident. After few days, Wahid Khan came to my house in the
afternoon and asked me to send my siblings outside. My siblings
refused to go outside. He left after threatening me. I did not
disclose all these things to my parents. My siblings were
wondering, as to why that uncle had scolded me. Thereafter, he
again called me to his home and told me that if I did not go to him,
he would post my photo on the internet. I was afraid and hence
went to his house. When Wahid Khan tried to force himself on me, I
started crying. Then, he agreed that he would not assault me on the
said day, but I would have to allow him to click my photos. He
clicked my photos after partially undressing me and thereafter sent
me home. On 13th October at about 02:00 pm, on the day of Bhai
Dooj, Wahid Khan came to my house when my parents had gone to
the market. Wahid Khan questioned me as to why I had not gone to
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him for a long time. I was unable to answer due to fear. Wahid
Khan showed a knife and threatened to kill my siblings.
Meanwhile, my younger brother Abhishek went outside and said
that he would inform my parents. Thereafter, Wahid Khan left after
threatening us with dire consequences in case I failed to heed to
his demands. Thereafter, in the evening when my parents returned
home, my brother told them that an uncle had come to the house
and threatened us with a knife. I disclosed the entire incident to my
mother. My parents were initially at a loss as to what they should
do. Thereafter, my mother took me to the police station. Legal
action should be taken.”
15. PW1, in the 164 statement marked as Ext. PW1/B
recorded on 21.11.2015, has stated thus: Wahid Khan (the
accused), the father-in-law of Zeenat, her friend, came to her house
and told her that Zeenat was calling her. Believing him, she went
to Zeenat’s house. On reaching there, she found the door of the
house closed. She entered the house but found that no one was
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present inside. Suddenly, Wahid Khan (the accused) came from
behind, latched the door, locked it, and kept the key with himself.
He told her to remain quiet and do exactly as he said. When she
attempted to leave the house, Wahid Khan (the accused) caught
hold of her hand, grabbed her, and pushed her onto the bed. She
started screaming, but the accused covered her mouth to stop her.
He then pulled down her pyjama, unzipped his pants, and
committed wrong act (ग ी हरकत) with her. She tried to scream,
but he did not allow her to scream or cry. During the incident, he
recorded a video of her and took photographs. He threatened her
that if she disclosed the incident to anyone, he would upload the
video on the internet. After the incident, she returned home. On a
later occasion, Wahid Khan (the accused) entered her house when
no one else was present. He threatened her and showed her the
photographs and video that he had taken. At that time, her younger
brothers were at home watching television. Wahid Khan (the
accused) also threatened her younger brothers, although they were
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too young to understand what was happening. Wahid hit her on her
cheek with a slipper and took out a ustara to frighten them. When
the accused committed the wrong act on her, she started bleeding
from her private part and suffered severe abdominal pain. On the
day of Bhaiya Dooj, her brother went around the neighbourhood
and spoke up about the incident. The accused had come to threaten
them on that day. Her youngest brother informed their mother.
Wahid Khan had been committing wrong acts (galat kaam) with
her for the past seven months. She could not recall the exact dates
or the number of times these acts had been committed on her.
Whenever she used to stop going to his house, the accused would
come to her house and threaten her. He repeatedly threatened to
upload her photographs and videos on the internet. On the 13th,
when her mother (PW2) questioned her, she disclosed the entire
incident to her. The accused had been assaulting her for the past
seven months. Whenever the accused came across her, the former
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would threaten and intimidate her, take her to his house, and
assault her there.
16. PW1 when examined before the trial court more or less
stood by her earlier statements in the FIS/FIR and the 164
statement.
16.1. PW1 in her cross-examination deposed that the house
where the incident took place was in the occupation of the accused
and his son, and that her friend Zeenat lived in a separate house.
Her parents were employed in a factory at Noida, Uttar Pradesh,
where they did tailoring work. They normally leave for work by
about 09:00 a.m. and return home by around 09:00 p.m. Her father
had Sundays off, whereas her mother did not have any weekly
holiday. On the day of the first incident, as usual, both her parents
had left for work. PW1 admitted that the accused is a moneylender.
However, PW1 denied borrowal of any money by her parents or
any of her family members from the accused. PW1 denied the
suggestion that the accused has been falsely implicated because
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her parents had borrowed money from him on interest and, upon
his demanding repayment, falsely implicated him in the present
case.
17. PW2, the mother of PW1, deposed that PW1 is her
eldest daughter. During the time of the incident, PW1 was studying
in the 9th standard in a government school situated near their house
and was 14 years old. Zeenat was her daughter’s (PW1) friend and
used to study with her daughter. Zeenat, after her marriage, started
residing in her matrimonial home situated at Sanjay Camp, Trilok
Puri. Her father-in-law, namely, Wahid Khan (the accused), was
also residing in the said matrimonial home. In 2015, on the
occasion of Bhai Duj, she, along with her husband, had gone to the
market to purchase some goods. When they returned home, she
noticed that her children looked frightened. On enquiry, her
youngest son, Abhishek (PW8), told her that an uncle had come to
the house and threatened to kill his sister (PW1). Abhishek (PW8)
told her that the uncle had taken out a knife and threatened PW1
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that he would kill her brothers. Abhishek (PW8) also stated that the
uncle had bolted the house from inside before threatening them.
Thereafter, Abhishek (PW8) unbolted the house and came outside,
stating that he would inform his parents, upon which Wahid Khan
(the accused) ran away from the spot. She asked her daughter
(PW1) about the incident and the reason for the same. Her
daughter then disclosed that the accused had been committing
wrongful acts on her for the past seven months and that the
accused had taken the former’s photographs on his mobile phone
while she was in a nude or semi-nude condition. Her daughter also
told her that Wahid Khan (the accused) had threatened to kill her
brothers, due to which she was too scared to disclose the incident
to her earlier. Her daughter told her that she had remained silent
out of fear that Wahid Khan (the accused) would publish the
photographs taken by him. Her daughter informed her that Wahid
Khan (the accused) had raped her. Initially, she was unable to
decide the course of action to be taken. She then discussed the
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matter with her husband, and after prolonged deliberation, decided
to report the matter to the police. The police arrested the accused
vide arrest memo Ext. PW2/A and the mobile phone of the
accused, which contained photographs of PW1 in a nude
condition, was seized by PW12vide Ext. PW2/3 seizure memo.
17.1. PW2 in her cross-examination deposed that her
marriage took place when she was just 12 years old, and that she
was 32 years old at the time of her examination before the court.
Although married at age 12, her vidai took place 5 years later, and
thatPW1 was born one and a half years after the vidai ceremony.
The birth of her daughter took place at their residence on
04.02.2001. PW1’s birth was not registered in any government
office, but a janam patri had been prepared. When PW1 was 05
years old, she was admitted in a government school located in
Trilok Puri, Delhi (known as Mandi wala school). PW2 denied the
suggestion that her family had taken a loan of ₹1,00,000/- from
the accused and falsely implicated him in this case when he
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demanded his money back. She denied the suggestion that the age
of the victim (PW1) was more than 19 years at the time of the
incident.
18. PW8, the brother of PW1, deposed that when he was
about 07 years old, he had seen the accused at his house on the day
of Bhai Duj. All his siblings were present in the house. The
accused showed a knife at his eldest sister (PW1) and also
threatened all of them not to disclose the incident or telephone the
police, or else, he would kill all of them. At that time, his parents
had gone to the market. The accused left the house before his
parents returned home. Thereafter, he informed his mother (PW2)
about the incident.
18.1. PW8 in his cross-examination deposed that no one had
tutored him regarding what to say before the Court. He admitted
that he did not know the accused prior to the incident. He denied
the suggestion that he had not seen the accused or that he was
identifying the accused at the instance of his mother.
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19. PW9, Senior Resident, LBS Hospital, New Delhi, was
examined to prove Ext. PW9/A MLC of PW1. He deposed that Dr.
Deepika, the doctor who had examined PW1, had left the hospital
and that the latter’s whereabouts were not known to the hospital.
PW9 identified the signature and handwriting of Dr. Deepika. PW9
in her cross-examination deposed that she had no personal
knowledge regarding the contents of the MLC, as it had not been
prepared in her presence. She had affixed her signature in the MLC
after Dr. Deepika had prepared it.
20. The accused has been convicted and sentenced for the
offence punishable under Section 5(l) read with Section 6 of the
PoCSO Act. The learned counsel for the appellant/accused has
disputed the age of PW1 before this Court. To determine the age of
PW1, PW7, Principal of EDMC, 1st shift School, Trilok Puri-block
28, Delhi-91, was examined. PW7 produced Ext. PW7/A a copy of
the relevant extract of the student admission and withdrawal
register reflecting the admission of PW1 at serial no. 3988; Ext.
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PW7/B photocopy of the admission form; Ext. PW7/C photocopy
of the affidavit given by PW2, mother of PW1, and Ext. PW7/D a
certificate regarding the date of birth of PW1 issued by her
predecessor-in-office on the basis of the aforesaid school records.
As per the record, PW1 was admitted to the school on 27.07.2006
in the first standard, and her date of birth is 04.02.2001.
20.1. PW7 in her cross-examination admitted that she does
not have any personal knowledge of the records in respect of PW1
and that she has deposed solely on the basis of official school
records.
21. Ext. PW7/D is described as a certificate given by the
then Principal of PW1’s school. This is a statement given in
writing by a witness during the course of investigation to the
police and hence a statement under Section 161 Cr.P.C., which is
clearly inadmissible in evidence (See Sasi v. State of Kerala 2019
KHC 465: 2019 (3) KLT 561), Kali Ram v. State of H.P., 1973
KHC 634:1973 (2) SCC 808; Kanu AmbuVish v. State of
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Maharashtra, 1971 KHC 469: 1971 (1) SCC 503; Datar Singh
v. State of Punjab, 1975 KHC 789 : (1975) 4 SCC 272 and C.
Chenga Reddy v. State of A.P., 1996 KHC 1264 : 1996 (10) SCC
193). However, Ex.PW7/A is the extract of the Admission Register
and the same is admissible in evidence. When PW7 was in the box,
it was never put to her by the defence that the entries made in the
register are false or that wrong/false information had been given by
the parents relating to the date of birth of PW1. There is nothing on
record to doubt the entry made in the register. As per Ext. PW7/A,
the date of birth of PW1 is 04.02.2001. The incident took place on
20.11.2015. If that be so, the age of PW2 was only 14 years.
Therefore, the fact thatPW1 was a minor at the time of the incident
stands proved.
22. The version narrated by PW1 in Ext. PW1/A FIS/FIR,
Ext. PW1/B her 164 statement, and her testimony before the trial
court is consistent and clear with regard to the manner in which the
appellant induced her to visit the house, committed sexual assault
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upon her, took her nude photographs, and repeatedly threatened
her with the publication of those photographs. Her testimony is
materially corroborated by PW2, her mother, who deposed that
upon returning home on the day of Bhai Dooj, PW1 disclosed that
the appellant had been repeatedly sexually assaulting her for
several months and had taken her nude photographs on his mobile
phone while threatening to publish them. The testimony of PW2
also finds further corroboration from PW8, the younger brother of
PW1, who deposed that he saw the appellant come to their house
on the day of Bhai Dooj, threaten PW1 and his siblings with a
knife, and leave before their parents returned. PW8 immediately
informed PW2 about the incident, whereupon PW1 disclosed the
entire occurrence to her mother.
23. Ext. PW9/A MLC corroborates the prosecution case of
rape/penetrative sexual assault. Ext. PW9/A MLC of PW1 notes
the hymen to be ‘torn’.
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24. It was submitted by the learned counsel for the
appellant/accused that as per the prosecution, the appellant lured
PW1 to the house of her friend by stating that her friend had called
her, and that when she reached the said house, the accused
confined and raped her. However, in her cross-examination, PW1
categorically admitted that her friend (Z),along with her husband,
were residing separately and not in the house of the appellant, who
is her father-in-law, while the latter himself resided in a separate
one-room accommodation. This admission according to the
learned counsel makes the prosecution story improbable, as there
was no plausible reason for PW1 to visit the appellant’s house to
meet her friend.
25. A perusal of the testimony of PW1 shows that she has
consistently stated in Ext. PW1/A FIS/FIR; Ext. PW1/B her 164
statement, and in her testimony that the appellant came to her
house and told her that Z, her friend, was calling her. Believing the
representation made by the appellant, she proceeded to the house
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where she expected to meet her friend. It is pertinent to note that
the prosecution case is not that the appellant specifically told PW1
to go to his own house. The evidence only indicates that the
appellant informed her that Z had called her. Since the appellant
was Z’s father-in-law, it cannot be said to be unnatural or
improbable for PW1 to believe that Z might be present at the
appellant’s residence. The evidence does not disclose that PW1
was aware of the exact residential arrangement of Z and the
appellant on the date of the occurrence. More importantly, the
defence did not confront PW1 with any suggestion that she knew Z
was residing elsewhere or that she deliberately went to the
appellant’s house despite such knowledge. On the contrary, the
consistent version of PW1 is that she acted upon the representation
made by the appellant that Z had called her. In these
circumstances, the contention that there was no reason for PW1 to
visit the appellant’s house does not create any doubt in the
prosecution case.
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26. The learned counsel for the appellant/accused
submitted that the photographs in the mobile phone of the accused
were never shown to or identified by PW1 or PW2, her mother,
during their examination, and therefore, it has not been proved that
the person depicted in the photographs is infact PW1. The
evidence of PW12, the IO, is not enough to prove that the said
photographs depicted PW1, goes the argument.
27. It is apposite to refer to the testimony of PW12, the IO
and PW5, Constable, on this point. PW12, Woman Sub-Inspector,
Mayur Vihar police station, deposed regarding the various steps
taken during the course of the investigation. She deposed that she
had prepared Ext. PW12/B site plan at the instance of PW1. She
had arrested the accused vide arrest memo Ex. PW2/A, and got his
personal search conducted through PW5 vide Ex. PW5/A memo.
At the time of arrest, she had seized a Nokia mobile phone from
the possession of the accused, as PW1 alleged the same contained
her nude photographs. Prior to seizure, she checked the mobile
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phone and found that it contained nude photograph of PW1. There
was no SIM card in the said phone. Vide Ext. PW2/B seizure
memo, the phone was seized. She later deposited the sealed case
property in the malkhana. During the course of investigation, on
20.12.2015, she had also seized a photograph of the victim vide
Ext. PW12/D memo for the purpose of comparison with the
images found in the seized mobile phone by the FSL. The case
property was deposited in the FSL on 31.12.2015 and 05.01.2016.
She identified Ext. P1 phone as seized from the possession of the
accused. She also identified Ext. P2 the passport-size photograph
and Ext. P3 post-card-size photograph of PW1 which had been
seized during the course of investigation, which were sent to the
FSL. PW12 confirmed that the photographs contained in Ext. P4
CD are the same images seen on the accused’s mobile phone at the
time of seizure.
28. PW5, then Constable, Mayur Vihar police station,
deposed that on 21.11.2015, as identified by PW1, the accused was
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SHARMA
Signing Date:07.08.2026
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apprehended and thereafter arrested. After arrest, the accused was
taken to the police station and thereafter to LBS Hospital for
medical examination.
28.1. PW5 in his cross-examination deposed that a mobile
phone had been recovered during the personal search of the
accused. According to PW5, the mobile phone was neither opened
nor its content checked in his presence. PW12 had not demanded
any ownership documents of the mobile phone from the accused in
his presence. PW5 denied the suggestions that he had never joined
the investigation or that the accused had not been arrested in his
presence or that no mobile phone had been recovered from the
possession of the accused.
29. The argument of the learned counsel for the
appellant/accused, by referring to the testimony of PW5, is that
PW12 never checked the image in the phone and therefore she is
also not competent to say whether the image of the girl seen in the
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mobile phone, alleged to have been seized from the accused, is in
fact that of the prosecutrix.
30. I am unable to agree to the argument advanced. PW5
has only deposed that PW12 had not checked the contents of the
mobile phone in his presence. That does not mean that PW12
never checked the contents of the phone, especially in the light of
the unchallenged testimony of PW12. PW12 deposed that before
seizing the mobile phone recovered from the possession of the
accused, she had examined its contents and found nude
photographs of PW1 stored therein. By the time PW12 seized the
mobile phone, she had the occasion to personally see the
prosecutrix. Therefore, her testimony to the effect that the image
seen in the phone is infact that of the prosecutrix is direct evidence
of a fact perceived through her own senses and hence admissible
under Section 60 of the Evidence Act, which requires oral
evidence to be direct. Thereafter, during the course of
investigation, PW12 seized Exts. P2 and P3 photographs of PW1
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and forwarded the same, along with the seized mobile phone, to
the FSL for scientific examination. Ext. PW12/I the FSL report
corroborates the testimony of PW12. It has been opined that the
image of the female marked “Q1” (the image extracted from the
mobile phone) and the image of the female marked “S1” (the
photograph of PW1) are of the same female. The report further
records that no indication of image reproduction or manipulation
was observed in the relevant image files. Thus, the identity of the
person appearing in the photographs is not based merely upon the
oral testimony of PW12 but also stands independently established
by scientific examination. In these circumstances, merely because
the photographs were not shown to PW1 or PW2 during the course
of their examination does not affect the evidentiary value of the
photographs or the FSL report, especially when the accused never
had a case that the images are of two different girls.
31. It was also submitted that the recovery of the mobile
phone from the possession of the accused is doubtful. PW12
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deposed that the mobile phone was recovered from the possession
of the accused at the time of his arrest and was seized vide Ext.
PW2/B seizure memo. Her evidence is materially corroborated by
PW5, who also deposed that a mobile phone was recovered during
the personal search of the accused. Both PW5 and PW12 denied
the defence suggestions that no mobile phone had been recovered
from the accused or that the accused had been falsely implicated.
Nothing has been brought out to discredit their testimony on this
aspect. Therefore, the factum of recovery of the mobile phone
from the possession of the accused stands duly established.
32. The submission regarding the absence of ownership
documents of the mobile phone and the non-production of the
malkhana register is also without merit. The seizure of the mobile
phone has been established through the testimony of PW5 and
PW12. Further, PW12 deposed that after seizure of the Nokia
mobile phone from the possession of the accused, she sealed it vide
Ext.PW2/B seizure memo and deposited the sealed case property
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in the malkhana. She further deposed that on 20.12.2015, she
seized the photographs of PW1 vide Ext. PW12/D seizure memo
for comparison with the photographs stored in the mobile phone
and that the case property was thereafter forwarded to the FSL on
31.12.2015 and 05.01.2016. She also identified Ext. P1 mobile
phone, Exts. P2 and P3 photographs, and confirmed that Ext. P4
photographs were the same photographs which she had seen in the
mobile phone at the time of seizure.
32.1. PW11, the then Moharrir Head Constable (Malkhana),
deposed that on 21.11.2015, PW12 had deposited one mobile
phone and an envelope containing photographs of the prosecutrix
in the malkhana. As per PW11, he dispatched the sealed parcels to
the FSL vide RC No.144/21/15 on 31.12.2015 through PW10. The
material objects were deposited by PW10, who handed him Ext.
PW11/C acknowledgement receipt from the FSL. PW11 produced
Register Nos. 19 and 21 and proved the relevant entries as Exts.
PW11/A to PW11/E. On 05.01.2016, he handed over the sealed
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parcel containing the mobile phone and photographs to PW12 to
be sent to the FSL through RC No.147/21/15. PW12 deposited the
sealed parcel and handed over Ext. PW11/E acknowledgement of
deposit. PW11 in his cross-examination denied the suggestion that
no such case property had been given to PW12 for depositing in
the FSL on 05.01.2016 or that the entries have been manipulated.
32.2. The evidence of PW11 is further corroborated by
PW10, then Constable, who deposed that as per the instructions of
PW12, on 31.12.2015 at about 08:30 a.m., he collected the sealed
parcels and sample seals from the MHC(M) vide RC
No.144/21/15. He deposited the same at the FSL and returned the
acknowledgement receipt issued by the FSL to PW11, the
MHC(M). He deposed that the sealed parcels remained intact and
were not tampered with so long as they remained in his custody.
32.3. The FSL report also records that the seals on the parcels
were intact and tallied with the specimen seal at the time of the
examination. Thus, the prosecution has established an unbroken
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SHARMA
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chain of custody through the consistent testimony of PW10, PW11
and PW12, duly supported by the malkhana entries and the FSL
report. No material suggesting tampering or substitution of the
case property has been brought on record.
33. On going through the FIS/FIR; the 164 statement as
well as the testimony of PW1, I find no reason(s) to disbelieve her.
She has clearly deposed that the accused had committed
penetrative sexual assault on her repeatedly for a period of around
07 months. It is true that there is some delay in reporting the matter
to the police. But that has been explained by PW1 herself. She
deposed that she did not reveal the assault/rape to her parents as
the accused had threatened to upload her nude photos that he had
taken in his mobile phone in case she revealed it to others. The
apprehension or fear of the prosecutrix stands justified in the light
of the discovery of her nude photographs in the mobile phone
seized from the accused. Therefore, the essential ingredients
contemplated under Section 5(l) of the PoCSO Act stand
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established. The conviction of the accused under Section 6 of the
PoCSO Act is therefore confirmed.
34. Now coming to the sentence. The learned counsel for
the appellant/accused submitted that the incident had occurred in
the year 2015, which is before the amendment of Section 6 of the
PoCSO Act. Prior to the amendment, which came into effect from
16.08.2019, the offence was punishable with rigorous
imprisonment for a term not less than 10 years, but which could
extend to imprisonment for life and fine. The accused has already
undergone incarceration for more than 05 years. The learned
counsel also submitted that the appellant is of advanced age and is
suffering from age-related ailments. It was, therefore, prayed that
the sentence imposed by the trial court be modified and reduced to
the statutory minimum sentence of ten years’ rigorous
imprisonment.
35. It is true that the incident in the present case occurred
much prior to the amendment of Section 6 of the PoCSO Act
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brought into force with effect from 16.08.2019. On the date of the
incident, Section 6 of the PoCSO Act prescribed a minimum
sentence of ten years’ rigorous imprisonment, which could extend
to imprisonment for life, and fine. The trial court imposed a
sentence of twelve years’ rigorous imprisonment.
36. As per the nominal roll dated 29.11.2025, the appellant
has undergone incarceration for 05 years and 06 months. It is seen
from the record that the appellant had been granted interim bail by
this Court vide order dated 07.06.2021, which was subsequently
modified on 04.08.2021 for a period of four weeks from
05.08.2021 to 01.09.2021. However, he never surrendered on
expiry of the period of interim bail. This fact was brought to the
notice of the Court only on 12.09.2025, on which date bailable
warrant was issued. But they could not be executed, and hence on
08.12.2025, non-bailable warrant was issued. Thereafter, he could
be arrested only on 09.12.2025, pursuant to which he continues to
be in jail. Hence, it can be seen that for four years he absconded
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and evaded the process of law for a considerable period. The
mitigating circumstances urged by the learned counsel, namely, the
appellant’s advanced age and age-related ailments, have also been
considered. However, in view of the gravity and nature of the
offence, coupled with the appellant’s conduct, this Court does not
find any exceptional circumstance warranting interference with the
sentence imposed by the trial court.
37. The appeal sans merit is dismissed.
38. Application(s), if any pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
AUGUST 07, 2026
p’ma/mj
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