Kartik vs State Of Nct Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 12.05.2026
Judgment pronounced on: 14.05.2026
+ CRL.A. 199/2025
KARTIK .....Appellant
Through: Mr. Adit S. Pujari, Mr. Bhavesh Seth
and Mr. Harshwardhan Pushkin
Sharma, Advocates (DHCLSC).
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Nikhil Kumar, PS Ambedkar
Nagar.
SI Kamal, PS Ambedkar Nagar.
Mr. Himanshu Anand Gupta, Mr.
Karan Jain and Ms. Mansi Yadav,
Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS), the sole
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accused in Sessions Case No. 727/2018 on the file of the
Additional Sessions Judge (Special Court - PoCSO), South
District, Saket Courts Complex, Delhi, assails the judgement
dated 19.09.2024 and order on sentence dated 16.10.2024, as per
which he has been convicted and sentenced for the offences
punishable under Sections 376(2)(n) and 174A of the Indian
Penal Code, 1860 (the IPC) and Section 5 (j)(ii) and (l) read with
6 of the Protection of Children from Sexual Offences Act, 2012
(the PoCSO Act).
2. The prosecution case is that in the month of
September 2017 and on 05.11.2017, the accused committed
repeated penetrative sexual assault/ rape upon PW1, a minor
aged about 17 years and 08 months as a result of which, she
became pregnant. Further, the accused failed to appear before
the trial court on 20.07.2018 as required by the proclamation
published on 19.06.2018, following which the accused was
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declared a proclaimed offender on 01.09.2018. Hence, as per the
chargesheet/ final report, the accused is alleged to have
committed the offences punishable under Sections 363, 376,
174A IPC and 6 PoCSO.
3. On the basis of Ext. PW10/A FIS/FIR of PW10,
given on 26.02.2018, Crime no. 204/2022, Ambedkar Nagar
Police Station, i.e., Ext. PX FIR was registered by Dharam Pal
Singh, Head Constable. PW3 Sub Inspector conducted
investigation into the crime and on completion of the same, filed
the chargesheet/final report alleging commission of the offences
punishable under the aforementioned Sections. Thereafter,
supplementary charge sheet dated 31.05.2019 and 24.02.2022
were submitted by PW9 and PW14.
4. When the accused was produced before the trial
court, all the copies of the prosecution records were furnished to
him, as contemplated under Section 207 Cr.P.C. After hearing
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both sides, the trial court, vide order dated 20.08.2019, framed a
Charge under Sections 376(2)(n) IPC and Section 5(j)(ii) read
with 6 of the PoCSO Act against the accused. Additionally, the
trial court also framed a Charge under Section 174A IPC against
the accused, which was read over and explained to the accused
to which he pleaded not guilty.
5. On behalf of the prosecution, PWs 1 to 16 were
examined and Ext. PW1/A-B, Ext. PW2/A-C, Ext. PW6/A, Ext.
PW10/A, Ext. PW11/A-C, Ext. PW12/A-D, Ext. PW15/A, Ext.
PW16/A-C, Ext. PX, and Ext. PX-1 to PX-8 were marked in
support of the case.
6. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C.
regarding the incriminating circumstances appearing against him
in the evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. The accused
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submitted that electricity bill relating to a house, namely, H. No.
K/400, Dakshinpuri, came in the name of the PW10, i.e., PW1’s
mother, who asked him to threaten the owner of the said house.
He refused the said request. PW10 repeated her demand and
threatened to falsely implicate him if he refused to accede. As he
refused the demand, PW10 got him falsely implicated in this
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 Cr.P.C. 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. vs. State of Kerala,
2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888 ). Here, the
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accused has no case that non-compliance of Section 232 Cr.P.C.
has caused any prejudice to him.
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 the impugned judgement dated 19.09.2024 held the accused
guilty of the offences punishable under Sections 376(2)(n) and
174A IPC and Section 5 (j)(ii) and (l) read with 6 PoCSO Act.
Vide order on sentence dated 16.10.2024, sentenced him to
undergo rigorous imprisonment for a period of 15 years and to
fine of ₹50,000/-, and in default of payment of fine, to simple
imprisonment for a period of 5 months for the offence
punishable under Section 376(2)(n) IPC; and to rigorous
imprisonment for a period of 3 years and to fine of ₹10,000/-,
and in default of payment of fine, to simple imprisonment for a
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period of 30 days for the offence punishable under Section 174A
IPC. The sentences have been directed to run concurrently.
Aggrieved, the accused has preferred this appeal.
10. The learned counsel appearing for the
appellant/accused submitted that the trial court erred in
determining the minority of PW1 on the basis of Ext. PW2/A
date of birth certificate, as the same is founded upon an affidavit
given by PW10 wherein the date of birth of PW1 is recorded as
03.03.2000, which coincides with the cut off date of the relevant
academic year, thereby casting doubt on its authenticity. The
prosecution has failed to conclusively establish the minority of
PW1, which is a foundational requirement for attracting the
offences under Sections 5(j)(ii) and 5(l) of the POCSO Act. It
was also argued that PW1 herself has disclosed in her testimony
about the existence of a consensual relationship with the
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accused, and therefore, if PW1 is not proved to be a minor, the
offence under Section 376(2)(n) IPC would not be attracted.
11. The learned Additional Public Prosecutor
submitted that the impugned judgment does not suffer from any
infirmity warranting interference by this court as the trial court
has duly considered each and every ground raised in the present
appeal and, upon an overall appreciation of the materials on
record, adjudicated the matter on merits. It was contended by the
learned APP that no question or suggestion disputing the age of
PW1 was put to her during cross examination, and PW10, the
mother of PW1, who would be the most competent person to
depose regarding her age, was also not confronted on this aspect.
Therefore, the defence cannot be permitted to raise a challenge
to the age of PW1 at this stage, and the same is liable to be
rejected.
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12. Heard both sides and perused the materials on
record.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgement calling for an interference by this court.
14. I make a brief reference to the oral and
documentary evidence relied on by the prosecution in support of
the case Ext. PW10/A, the FIS/FIR given by PW10, mother of
PW1 is a missing complaint. According to PW10, on
25.02.2018, at about 02:00 PM, her daughter (PW1) went
missing. Hence, appropriate legal action may be taken. PW10
furnished a list of persons, including the accused, upon whom
she had suspicion in connection with the missing of her
daughter.
15. PW1, the victim, in Ext. PW1/A Section 164
Statement recorded on 27.02.2018 has stated thus:-“ I love a boy
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named Kartik (the accused) . I will turn 18 years old in four days.
We both love each other. We have been talking to each other for
4 years. We both had decided to get married, but I was not 18,
so he said that we will get married after I turn 18. Then, without
telling me, he eloped with a girl named Aarti. I do not know
what his compulsion was, but then he went to Tihar jail. Both of
them got married of their own free will. Then I found out that
while being with me, he got involved with another girl. In Nov.
2017, he established physical relations with me with my consent.
Then I found out that I am pregnant. When I told him, he said
alright, I will take you with me because I was facing a lot of
problems at home. He had talked to me before the 25th. He was
in Bihar at that time; he said that he would come from Bihar and
take me along, but I did not listen to him at all and kept
insisting. Then, of my own free will, on 25.02.18 at 02:00 PM, I
went to Kartik's aunt's (mausi's) house. From there, I called my
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elder brother to tell him that wherever I am, I am fine, but my
brother started insisting on calling me back. My mother's health
was also not fine, so on 26/02/18 I came back. Then I called
Kartik on the phone, and he said that he would come back by
tomorrow. Then I came to know that this complaint has been
filed. I am still pregnant. I do not know whether Kartik has come
back or not. I want to get an abortion. Kartik should also be
asked what he wants. Kartik is not at fault in this. ”
(Emphasis supplied)
16. PW1, when examined before the trial court, fully
stood by her version given in Ext. PW1/A Section 164
Statement. PW1 further deposed that in the year 2017 she was
residing with her family comprising her mother, two brothers
and five sisters at Dakshinpuri, Delhi. She was in a relationship
with the accused for about 3 to 4 years who was a friend of her
elder brother Ajay. The accused had promised to marry her and
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she had also consented to the same. However, the marriage did
not take place as she had not attained the age of 18 years at that
time. On 24.02.2017, she went to the house of the accused’s
maternal aunt ( mausi ). She was pregnant and hence returned the
next day. PW1 deposed that she had physical relations with the
accused on 2 to 3 occasions during their relationship, but she
does not remember the exact date, month or year of the first two
instances of physical relations. However, the last such instance
took place on 29.11.2017. She consented to such physical
relations as the accused had promised to marry her and she also
intended to marry him. When she became pregnant and informed
the accused, he told her that he would take her to his house and
marry her. However, thereafter he went to Bihar to participate in
a dance show. As her pregnancy progressed, she became anxious
and informed the accused telephonically, upon which he asked
her to go to the house of his maternal aunt. She accordingly went
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there, but the accused did not come despite his assurance.PW1
further deposed that she thereafter called her brother, who asked
her to return home stating that their mother was unwell, and she
accordingly returned. She made several attempts to contact the
accused thereafter, but was unable to reach him. After the
accused had established physical relations with her, she came to
know that he had married another girl, namely, Aarti by eloping
with her and that in connection with that matter he had also been
sent to jail. She further clarified that her earlier statement
regarding the date of visiting the house of the accused’s maternal
aunt on 24.02.2017 was inadvertent and that the correct date was
24.02.2018.
16.1. PW1, in her cross examination, admitted that she
used to visit the house of the accused regularly during their
relationship. According to PW1, her parents refused to
solemnize her marriage with the accused on coming to know that
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the background of the accused was not good and that he was
already married. PW1 denied the suggestion that she had given a
statement to the police under pressure from her sister or that she
never intended to initiate proceedings against the accused.
According to PW1, initially she was reluctant as the accused had
assured her that he would come to the police station, however,
when he failed to do so, she gave her statement. PW1 denied the
suggestion that the present case was falsely instituted as the
accused married Aarti instead of her. PW1 deposed that she does
not wish to marry the accused as he had deceived her and despite
having relations with her, he had married another woman, and so
there is a possibility that he would repeat such conduct in future
also.
17. PW8 and PW10, the sister and mother of PW1
respectively support the prosecution case of relationship
between the latter and the accused, though they had not directly
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witnessed any such relations between the two. According to
PW8, PW1 underwent an abortion on 03.03.2018. PW8 deposed
that her sister had informed her that the former was pregnant
with the child of the accused.
17.1. PW8 in her cross examination expressed her
inability to state the exact age of PW1, but denied the suggestion
that the latter was about 22 years of age at the relevant time.
According to PW8, she was born in the year 2002 and so was
around 20 to 21 years of age when examined before the Court.
PW8 further deposed that she was not aware of any love affair
between her sister and the accused. PW8 admitted that the
accused used to visit their house, sometimes stayed overnight,
and used to take meals there. PW8 admitted that they had not
noticed any relationship between the accused and PW1.
According to her, the wife of the accused had informed them
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about such a relationship, which the accused denied when
confronted.
18. PW2, Principal, Nigam Pratibha School,
Ambedkar Nagar, when examined, deposed that as per the
school record, PW1 was admitted for the first time in Class 2
and her name has been recorded at Serial No. 4559 in the
Admission and Withdrawal Register. At the time of admission,
the mother of PW1 had submitted an affidavit declaring the date
of birth of the victim as 03.03.2000. The same was marked as
Ext. PW2/A. PW2 further deposed that during the course of
investigation, the police visited the school and made inquiries
regarding PW1’s admission, whereupon she verified the record
and issued a certificate reflecting the date of birth as 03.03.2000.
The said certificate has been marked as Ext. PW2/B. PW2 also
produced the attested copy of the admission form, which is Ext.
PW2/C and the attested copy of the Admission and Withdrawal
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Register, which is Ext. PW2/D. PW2, in her cross examination,
admitted that the date of birth was recorded on the basis of an
affidavit furnished by PW10, mother of PW1. PW2 admitted
that she was not working in the school at the time when PW1
was admitted and had joined the school only in the year 2017.
19. The trial court has found the accused guilty of the
offences punishable under Section 376(2)(n) IPC as well as
Section 5(j)(ii) and (1) read with Section 6 PoCSO Act. To bring
home the charge under Sections 5 and 6 of the PoCSO Act, the
prosecution must establish that PW1 was a child, that is, below
18 years of age at the time of the incident. In order to prove the
same, the prosecution has relied upon the testimony of PW2, the
Principal of the school where PW1 had studied, along with Ext.
PW2/B, the date of birth certificate issued by PW2 on the basis
of Ext. PW2/A affidavit furnished by PW10, the mother of PW1
at the time of admission. A birth certificate issued to the
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investigating officer by the authority concerned during
investigation is nothing but a statement under Sec. 161 CrPC,
although signed. Therefore, it is hit by Sec. 162 CrPC. The
prosecution has to produce the extract of the birth register or the
extract of the school admission register or any other similar
document to prove the age of the victim. What was produced
and exhibited was a certificate issued by PW2, the Principal of
the school where the victim had studied. The certificate marked
as Ext PW/2B is a certificate PW2 prepared and signed and
handed over to the investigating officer. The same can be treated
only as a statement of PW2 given to the investigating officer
under S.161 of Cr.PC, although signed. Ext PW2/B is therefore
hit by S.162 of Cr.PC and is not admissible in evidence and
hence is liable to be discarded ( Sasi v. State of Kerala 2019
KHC 465: 2019 (3) KLT 561 ).[See also Kali Ram v. State of
H.P., 1973 KHC 634:1973 (2) SCC 808; Kanu Ambu Vish v.
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State of Maharashtra, 1971 KHC 469: 1971 (1) SCC 503;
Datar Singh v. State of Punjab, 1975 KHC 789 : 1975 (4) and
C. Chenga Reddy v. State of A.P., 1996 KHC 1264 : 1996
(10) SCC 193]
20. It is true that PW2 has also produced Ext. PW2/D,
which is stated to be the attested copy of the admission and
withdrawal register. But the entry in the same is stated to have
been made on the basis of an affidavit given at the time of
admission of PW1 in the school. Therefore, the evidence relating
to age of PW1 is not quite satisfactory.
21. It is true that Section 29 of the POCSO Act
provides that the Court shall presume that the accused has
committed or abetted or attempted to commit the offence, unless
the contrary is proved. However, such presumption is not
automatic and comes into operation only upon the prosecution
first establishing the foundational facts of the case. In the present
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case, insofar as the prosecution has failed to prove the minority
of PW1, which is a sine qua non for attracting the provisions of
the POCSO Act, the statutory presumption under Section 29
cannot be invoked, and the benefit of doubt must necessarily
enure to the accused.
22. Coming to the offence punishable under Section
376(2)(n) IPC, in view of the prosecution having failed to
establish the minority of PW1, the relationship between the
accused and PW1 is to be assessed on the basis of consent. As
PW1 has, throughout her testimony, admitted to having engaged
in a consensual relationship with the accused, the essential
ingredients of the said offence are not made out.
23. In the result, the appeal is allowed. The
appellant/accused is acquitted under Section 235(1) Cr.P.C. of
the offences punishable under Sections 376(2)(n) IPC and
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Section 5(j)(ii) and (l) read with 6 of the PoCSO Act. He is set at
liberty and his bail bonds shall stand cancelled.
24. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 14, 2026
kd
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