Shamsher Alam vs State Nct Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 13.07.2026
Judgment pronounced on: 17.07.2026
+ CRL.A. 1013/2025
SHAMSHER ALAM .....Appellant
Through: Ms. Mansi Yadav, Mr. Himanshu
Anand Gupta, Mr. Karan Jain and
Mr.Shekhar Anand Gupta, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Chetan Panwar, PS Chhawla.
Mr. Pravir Singh, Amicus Curiae.
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
accused in Sessions Case No. 290/2019 on the file of the
Additional Sessions Judge (Special Court - PoCSO), South West
District, Dwarka Courts, New Delhi, assails the judgement dated
28.11.2024 and order on sentence dated 20.03.2025, as per which
Signature Not Verified
CRL.A. 1013/2025 Page 1 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
he has been convicted and sentenced for the offences punishable
under Sections 363, 366, 307 of the Indian Penal Code, 1860 (the
IPC) and Section 5(m) read with 6 of the Protection of Children
from Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 03.03.2019 at about
04:00 PM, the accused took PW1, minor girl aged 11 years out of
the custody and control of her parents, without their consent, on
the pretext that it was his daughter's birthday, with the intention of
having illicit intercourse with her and the accused committed
penetrative sexual assault upon her in a jungle near Khera Dabar
Village Road, New Delhi. He forbade PW1 from disclosing the
incident to others and when PW1 cried, he pressed her throat with
the intention/knowledge to kill her. Hence, as per the chargesheet/
final report, the accused is alleged to have committed the offences
punishable under Sections 363, 366, 307 IPC and 6 PoCSO Act.
3. On the basis of Ext. PW1/A FIS/FIR of PW1, given on
04.03.2019, Crime no. 70/2019, Chhawala Police Station, i.e., Ext.
Signature Not Verified
CRL.A. 1013/2025 Page 2 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
PX1 FIR was registered by CW16 (Charge Witness), Head
Constable. PW13 Women Assistant Sub Inspector (WASI)
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.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him, as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, vide order dated 06.05.2019, framed a Charge under
Sections 363, 366, 307, 506 IPC and Section 5(m) read with 6
PoCSO Act against the accused which was read over and explained
to him to which he pleaded not guilty.
5. On behalf of the prosecution, PWs 1 to 18 were
examined and Ext. A-1, Ext. P3-P4, Ext. PW-1/A-C, Ext. PW-2/A,
Ext. PW-3/A, Ext. PW-5/A, Ext. PW-7/A, Ext. PW-8/A-B, Ext.
PW-11/A-B, Ext. PW-12/A - C, Ext. PW-13/A-C, Ext. PW-13/A1,
Signature Not Verified
CRL.A. 1013/2025 Page 3 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Ext. PW-15/A, Ext. PW-16/A, Ext. PW-18/A-B, Ext. PX/1, Ext.
PX2, and Ext. PX3were 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 submitted that he was
working as a daily wager under the maternal grandfather ( nana ) of
PW1 along with PW1’s mother. He went to the residence of PW1’s
maternal grandfather to demand his pending wages. PW1
voluntarily accompanied him, along with another child, to show
him the nearby work site where her mother and maternal
grandfather were working. PW1 left him after showing the site,
which was situated near Khera Road, Big Bazar, Najafgarh,
situated at a distance of approximately ten minutes from her house.
Thereafter, he met PW1’s parents and other labourers at the site,
where a heated argument took place regarding his unpaid wages,
Signature Not Verified
CRL.A. 1013/2025 Page 4 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
following which he left. The accused denied having committed any
offences.
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 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 28.11.2024 held the accused
Signature Not Verified
CRL.A. 1013/2025 Page 5 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
guilty of the offences punishable under Sections 363, 366, 307 IPC
and Section 5(m) read with 6 PoCSO Act. Vide order on sentence
dated 20.03.2025, the accused has been sentenced to undergo
rigorous imprisonment for a period of 14 years and to fine of
₹10,000/-, and in default of payment of fine, to simple
imprisonment for a period of 30 days for the offence punishable
under Section 6 read with 5(m) of the PoCSO Act; to rigorous
imprisonment for a period of 3 years and to fine of ₹5,000/-, and in
default of payment of fine, to simple imprisonment for a period of
15 days for the offence punishable under Section 363 IPC; to
rigorous imprisonment for a period of 5 years and to fine of
₹5,000/-, and in default of payment of fine, to simple
imprisonment for a period of 15 days for the offence punishable
under Section 366 IPC; and to rigorous imprisonment for a period
of 4 years and to fine of ₹5,000/-, and in default of payment of
fine, to simple imprisonment for a period of 15 days for the
offence punishable under Section 307 IPC. The sentences have
Signature Not Verified
CRL.A. 1013/2025 Page 6 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
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 placing
reliance on the testimony of PW1, despite the same suffering from
material inconsistencies and improvements. The learned counsel
for the appellant/accused further submitted that, according to the
prosecution, PW1 was dropped near her house by an unknown
motorcyclist after the alleged incident. It was submitted that the
said person was an independent and material witness, as he was the
first person to have allegedly seen PW1 immediately after the
occurrence and taken her home. However, the prosecution made no
effort to trace, identify or examine him, thereby withholding
crucial evidence which could have thrown light on the true
circumstances of the case.
10.1. It was further submitted that the trial court has
erred in failing to take note of the fact that the accused has been
Signature Not Verified
CRL.A. 1013/2025 Page 7 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
falsely implicated due to the animosity arising out of a financial
dispute existing between him and the family of PW1.
10.2. It was further contended that the prosecution has
failed to satisfactorily establish the age of PW1. It was submitted
that PW2, the Principal of the school attended by PW1, admitted in
his cross examination that no document pertaining to the date of
birth of PW1 was produced at the time of her admission, nor was
any affidavit regarding her date of birth obtained from her parents.
It was thus argued that, in the absence of any authentic record
supporting the entry in the school register, the prosecution has
failed to prove the age of PW1 beyond reasonable doubt.
10.3. Without prejudice to the submissions on merits,
the learned counsel canvassed for leniency regarding the quantum
of sentence and prayed that the sentence be reduced to a period of
10 years which is the minimum prescribed punishment under
Section 6 PoCSO Act (prior to the 2019 amendment)
Signature Not Verified
CRL.A. 1013/2025 Page 8 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
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.
11.1. The learned counsel appearing for PW1 submitted
that materials on record are sufficient to find the accused guilty of
the offences charged against him and that there is no infirmity in
the impugned judgment.
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 shall first briefly refer to the evidence on record relied
on by the prosecution in support of the case. The incident in this
case is alleged to have taken place on 03.03.2019 at 04:00 p.m. in
Signature Not Verified
CRL.A. 1013/2025 Page 9 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
jungle near Khera Dabar Village Road, New Delhi. Ext. PW1/A,
the FIS/FIR of PW1 is seen recorded on 04.03.2019, that is, on the
next day of the incident. In the FIS/FIR, PW1 has stated thus: “… I
am residing at the address mentioned in a rented house with my
parents and my two brothers. I am studying in the 5th standard at
the Municipal Corporation Primary Co-educational School, Khera
Village, New Delhi. My parents are labourers. Yesterday, on
03.03.2019 at around 4:00 PM, Shamsher uncle (the accused) ,
who works as a labourer along with my mother and father and
who frequently visits our house, came to our house and told me,
that is, his daughter's birthday, and that my mother has asked him
to take me along with him and that my mother would come later
with my brother. My younger brother ( PW6 ), who was with me,
wanted to come along with us. But uncle told him that he should
come later with my mother. Shamsher uncle held my hand and took
me away. After walking a short distance, uncle kept telling me that
his house was just nearby and saying so, he kept taking me further
Signature Not Verified
CRL.A. 1013/2025 Page 10 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
ahead. Uncle took me into a jungle like area. When I asked uncle
as to why have he had brought me there, he asked me to keep quiet
and said that if I spoke, he would strangulate me. Uncle started
taking off my clothes. When I started screaming, he pressed my
neck ( मेरा गला दबाया ). Out of fear, I became quiet. Then he took off
his jeans and lay down on top of me. He inserted his private part
inside my private part. When I started screaming in pain, he
choked my throat again. I fainted and lost consciousness. When I
regained consciousness, there was no one there. I quickly put on
whatever clothes I could see around me and came out into the
main road where vehicles were passing by. I stopped a man on a
motorcycle who was passing through and asked him to drop me at
my house. I told him that I was residing at Krishna Vihar. The
motorcyclist dropped me home. I do not know who that
motorcyclist was. I disclosed the entire incident to my mother. As it
was already night, my mother informed my maternal uncle (Mama)
in the morning. He said that we must report the matter to the
Signature Not Verified
CRL.A. 1013/2025 Page 11 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
police, after which he called the police. Shamsher Uncle has done
wrong to me; he should be punished. ”
14.1. In Ext. A-1, the 164 statement of PW1, seen
recorded on 05.03.2019, PW1 has stated thus:- “ On 03.03.19,
uncle came to my house. He frequently visits my house and used to
earlier work with my mother. My mother calls him Shamsher. On
03.03.2019, he told me that it was his daughter's birthday and that
my mother had asked him to take me along with him, and that my
brother and mother would come later. That uncle took me to a
jungle-like place and took off my clothes. Then he took off his
pants and put his private part into my private part .”
14.2. PW1, when examined before the court, stood by
her case in the FIS/FIR and in her 164 statement. PW1 also
identified the accused before the Court. PW1 denied the defence
version that about a week before the incident, her parents had a
quarrel with the accused, or that they owed him money which led
to a dispute. PW1 also denied any quarrel between her parents and
Signature Not Verified
CRL.A. 1013/2025 Page 12 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
the accused on the night of the incident. PW1 also denied that she
had sustained injuries as a result of a fall from a motorcycle or that
she had falsely implicated the accused at the instance of her
parents.
15. PW6, the brother of PW1, when examined before the
trial court, fully supported the prosecution story. PW6 deposed that
on the day of the incident their mother had gone for work, at which
time the accused came to their house and told them that it was his
daughter’s birthday. The accused forcibly took PW1 alongwith
him. When he insisted on accompanying them, the accused asked
him to come later along with his mother. PW6 admitted that the
accused has visited them on earlier occasions, at which time he had
asked for money and that his mother paid the same.
16. PW10, the maternal uncle of PW1, also supports the
prosecution case. He deposed that at about 08:00-09:00 AM on
04.03.2019, he along with PW1 and her mother had visited the
place of occurrence, where they found some clothes belonging to
Signature Not Verified
CRL.A. 1013/2025 Page 13 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
PW1. They collected the clothes and brought them home,
following which the police was informed. The clothes were
thereafter handed over to the police, who recorded his statement.
PW10 in his cross examination, admitted that he had never met the
motorcyclist who had dropped PW1 at her house.
17. PW5, Chief Medical Officer, DDU Hospital, when
examined, deposed that on 04.03.2019, he had examined PW1. On
examination, he found multiple abrasions and small contusions on
both sides of her neck, redness in the left eye, and a small abrasion
on the left cheek. He prepared the MLC, which has been marked as
Ext. PW5/A. He referred PW1 to the Senior Resident,
Gynaecology Department and to an Eye Specialist for further
examination. PW5, in his cross examination, deposed that he was
unable to comment whether the injuries seen on PW1 could have
been caused by a fall from a moving vehicle. He does not recall
whether he had asked PW1 as to how she had sustained the
injuries. PW5 denied the suggestion that PW1 had informed him
Signature Not Verified
CRL.A. 1013/2025 Page 14 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
during the medical examination that she had sustained the injuries
by falling from a moving vehicle and that the said history was
deliberately omitted from the MLC at the instance of the police.
18. PW7, Chief Medical Officer, DDU Hospital, deposed
that she had been deputed by the Medical Superintendent to depose
on behalf of Dr. Shubhi Gupta, who had left the services of the
hospital and whose present address is not known. According to
PW7, she is acquainted with the handwriting and signature of Dr.
Shubhi Gupta, having seen her write and sign during the course of
discharge of her official duties. PW7 identified the handwriting
and signature of Dr. Shubhi Gupta in the MLC. She further
deposed that the requisite biological samples had been collected
and the outer garments of the child, namely, the salwar and sweater
had also been collected, sealed, and preserved.
19. PW2, Principal, Kanya Prathmik Vidhyalaya, Basela
Rath, Hamirpur, Uttar Pradesh, produced the school records
pertaining to the admission of PW1. As per Ext. PW2/A admission
Signature Not Verified
CRL.A. 1013/2025 Page 15 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
register, PW1 was admitted to Class I on 25.08.2014 vide Entry
No. 1304. PW2 further deposed that while studying in class III,
PW1 left school on 15.07.2016 as her mother informed the school
authorities that she had taken admission for PW1 in Delhi, which
fact has been recorded in Ex. PW2/A. PW2 further deposed that as
per school records, the date of birth of the child is 13.08.2008.
PW2 admitted that no documentary proof regarding the child’s
date of birth had been submitted at the time of the admission.
During the course of investigation, he had issued Ext. PW2/B
school certificate and handed over the same along with the attested
copy of the admission register to the police. PW2, in his cross
examination, admitted that at the time of the child’s admission in
the school, no affidavit from her parents regarding her date of birth
had been obtained. The date of birth recorded in the school records
was entered on the basis of the information furnished by the
parents of the child.
Signature Not Verified
CRL.A. 1013/2025 Page 16 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
20. As noticed earlier, the accused has been charged with
the offences punishable under Sections 363, 366, 307, 506 IPC and
Section 5(m) read with Section 6 of the PoCSO Act. Section 363
IPC deals with punishment for kidnapping. Section 361 IPC,
which defines kidnapping from lawful guardianship, says that
whoever takes or entices any minor under sixteen years of age, if a
male, or under eighteen years of age, if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of such
minor or person of unsound mind, without the consent of such
guardian, commits the offence of kidnapping from lawful
guardianship. Section 366 IPC prescribes that any person who
kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled to
marry any person against her will, or in order that she may be
forced or seduced to illicit intercourse, or knowing it to be likely
that she will be forced or seduced to illicit intercourse, is liable to
be punished with imprisonment and fine. The Section also says
Signature Not Verified
CRL.A. 1013/2025 Page 17 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
that whoever by means of criminal intimidation as defined in the
Code or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may
be, or knowing that it is likely that she will be forced or seduced to
illicit intercourse with another person is also liable to be punished.
21. To constitute an offence under Section 361 IPC, the
prosecution is required to prove that the accused took or enticed a
minor female under eighteen years of age out of the keeping of her
lawful guardian without the guardian's consent. In the case on
hand, the version of PW1, which has remained consistent from the
inception of the prosecution case, that is, in Ext. PW1/A FIS/FIR,
Ext. A1 Section 164 statement, and her deposition before the
Court, establish all the essential ingredients of the offences
punishable under Sections 363 and 366 IPC. Nothing material has
been elicited in her cross examination to discredit her version. On
the contrary, the defence suggestions put to PW1, alleging false
implication on account of a monetary dispute between the accused
Signature Not Verified
CRL.A. 1013/2025 Page 18 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
and her parents or that she had sustained injuries by falling from a
motorcycle, have been categorically denied by her and remain
wholly unsubstantiated.
22. The aforesaid evidence also establishes the offence
punishable under Section 366 IPC. PW1 has consistently deposed
that immediately after inducing her to accompany him, the accused
did not proceed towards his residence but instead took her to a
lonely jungle area, where he threatened to strangulate her if she
raised an alarm, removed her clothes, removed his own clothes and
committed penetrative sexual assault upon her. Such acts of the
accused firmly establish that he had kidnapped PW1 in order that
she may be forced or seduced to illicit intercourse. The actual
commission of penetrative sexual assault immediately after taking
PW1 away is the strongest circumstance reflecting the intention
with which the accused induced her to leave her house. Thus, the
prosecution has proved beyond reasonable doubt that the accused
Signature Not Verified
CRL.A. 1013/2025 Page 19 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
kidnapped PW1 with the intention contemplated under Section 366
IPC.
23. Section 6 of the POCSO Act provides punishment for
aggravated penetrative sexual assault. Section 5(m) classifies
penetrative sexual assault as aggravated where it is committed
upon a child below twelve years of age. Section 3 of PoCSO Act
defines penetrative sexual assault. As per the Section, a person is
said to commit "penetrative sexual assault" if he does any of the
acts referred to in clauses (a) to (d) of Section 3 PoCSO Act. The
factum of penetration has been consistently spoken to by PW1
from the very inception, namely, in Ext. PW1/A FIS/FIR, her
statement recorded under Section 164 CrPC and her deposition
before the trial court. Her version on this material aspect has
remained substantially consistent, and nothing worthwhile has
been elicited in her cross examination to discredit her testimony or
render it unworthy of reliance. The testimony of PW1 also finds
corroboration from the medical evidence. Ext. PW5/A MLC of
Signature Not Verified
CRL.A. 1013/2025 Page 20 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
PW1 records findings consistent with recent sexual intercourse. It
also records that the hymen was found torn, thereby lending
assurance to the prosecution version regarding the commission of
penetrative sexual assault. In the absence of any cogent material
brought on record by the defence to impeach the credibility of
PW1 or to probabilise a contrary version, her testimony inspires
confidence and is sufficient to establish the fact of penetration.
24. The learned counsel appearing for the
appellant/accused further contended that the prosecution has failed
to satisfactorily prove the age of PW1. It was submitted that PW2,
the Principal of the school attended by PW1, admitted in his cross
examination that no document(s) relating to the date of birth of
PW2 had been produced at the time of her admission and that the
school had not insisted upon any affidavit or documentary proof
regarding the date of birth. It was, therefore, contended that, in the
absence of any contemporaneous document supporting the entry,
the prosecution has failed to prove the age of PW1.
Signature Not Verified
CRL.A. 1013/2025 Page 21 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
25. According to PW2, Ext.PW2/B certificate was issued
by the Principal of the school to the I.O. Such a certificate issued
by the Principal to the I.O. during the course of investigation is
nothing but a statement under Section 161 CrPC. Therefore, it is
hit by Section 162 Cr.P.C. 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. Therefore, the certificate marked as Ext PW2/B, a
certificate prepared by the Principal, signed and handed over to the
IO, can be treated only as a statement of the Principal given to the
IO under Section 161 of Cr.PC, although signed. Ext PW2/B is hit
by Section 162 of Cr.PC and is not admissible in evidence and
hence is liable to be discarded (See 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 AmbuVish v.
State of Maharashtra, 1971 KHC 469: 1971 (1) SCC 503; Datar
Singh v. State of Punjab, 1975 KHC 789 : (1975) 4 SCC 272
Signature Not Verified
CRL.A. 1013/2025 Page 22 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
and C. Chenga Reddy v. State of A.P., 1996 KHC 1264 : 1996
(10) SCC 193 ].
26. The date of the alleged incident is 03.03.2019.
According to the prosecution, PW1 was a child below the age of
twelve years at the relevant time, i.e., 11 years old. To establish her
age, the prosecution has relied upon the testimony of PW2 as well
as Ext. PW2/A, the extract of the admission register, which records
the date of birth of PW1 as 13.08.2008. When PW2 was in the box,
it was never put to him by the defence that the entries made in the
register are false or that a wrong/false information had been given
by the parents relating to the date of birth of the child. Therefore,
there is nothing on record to doubt the entry made in the register.
27. As per Ext. PW2/A, the date of birth of PW1 is
13.08.2008. The incident took place on 03.03.2019. If that be so,
PW1 was only 11 years old at the time of the incident. The age of
PW3 on the date of her examination before the court on
25.07.2019 is seen recorded as 11 years. In Ext. PW5/A MLC, Ext.
Signature Not Verified
CRL.A. 1013/2025 Page 23 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
PW1/A FIS/FIR as well as in Ext. A1 164 statement, her age is
seen recorded as 11 years. In the absence of any material(s) to
indicate to the contrary, there is no reason to disbelieve the factum
of age based on the entry in the school records.
28. The learned counsel for the appellant/accused further
contended that the prosecution failed to trace or examine the
unknown motorcyclist who allegedly dropped PW1 near her house
after the incident and that such omission is fatal to the prosecution
case. I find no merit in the said contention. It is a settled principle
of criminal jurisprudence that evidence has to be weighed and not
counted. A conviction can safely be founded on the testimony of a
sole witness if such testimony is found to be cogent, credible and
inspires confidence.
29. In the present case, the said motorcyclist was not a
witness to the incident. He merely found PW1 after the incident,
while she was on the road, and on her request dropped her near her
house. He neither witnessed the accused taking PW1 away nor the
Signature Not Verified
CRL.A. 1013/2025 Page 24 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
commission of the sexual assault. At best, he could have spoken to
the fact that he had dropped PW1 at her residence, which is only a
collateral circumstance. The prosecution case rests primarily on the
testimony of PW1 who has consistently narrated the manner in
which the accused induced her to accompany him, took her to a
secluded place and sexually assaulted her. Her version in Ext.
PW1/A, her statement under Section 164 CrPC and her deposition
before the Court are materially consistent on all material
particulars which has been corroborated by the testimony of PW6,
her brother.
30. The explanation furnished by the accused in his
statement under Section 313(1)(b) CrPC does not inspire
confidence and appears to be a mere bald assertion. The defence
version when PW1 was in the stand was that her mother owed
money to the accused, relating to which a dispute arose resulting in
the false implication. But, the accused while questioned under
Section 313(1)(b) Cr.P.C. puts forth a new case that the money
Signature Not Verified
CRL.A. 1013/2025 Page 25 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
transaction was with the grandfather of PW1. PW6, the brother of
PW1, asserted in the box that his mother had repaid all dues to the
accused. This testimony of PW6 is not seen challenged. There is
not even a suggestion seen put that his testimony to the said effect
is wrong/ false. Hence, in the absence of any supporting materials,
the explanation remains wholly unsubstantiated and does not
probabilise the defence put forth by the accused.
31. Coming to the Charge framed under Section 307 IPC
against the accused. Section 307 IPC deals with the offence of
attempt to commit murder. The essential ingredients required to be
proved in the case of an offence under 307 are:- (i) that the death
of a human being was attempted; that such death was attempted to
be caused by or in consequence of the act of the accused; and that
such act was done with the intention of causing death; or that it
was done with the intention of causing such bodily injury as; (a)
the accused knew to be likely to cause death; or (b) was sufficient
in the ordinary course of nature to cause death, or that the accused
Signature Not Verified
CRL.A. 1013/2025 Page 26 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
attempted to cause death by doing an act known to him to be so
imminently dangerous that it must in all probability cause, (a)
death, or (b) such bodily injury as is likely to cause death, the
accused having no excuse for incurring the risk of causing such
death or injury.
31.1. A person commits an offence under Section 307,
when he has an intention to commit murder and, in pursuance of
that intention, does an act towards its commission irrespective of
the fact whether that act is the penultimate act or not. It is to be
clearly understood, however, that the intention to commit the
offence of murder means that the person concerned has the
intention to do certain act with the necessary intention or
knowledge mentioned in Section 300. The intention to commit an
offence is different from the intention or knowledge requisite for
constituting the act as that offence. The expression "whoever does
an act with such intention of knowledge and under such
circumstances that if he, by that act, caused death, he would be
Signature Not Verified
CRL.A. 1013/2025 Page 27 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
guilty of murder" in Section 307, simply means that the act must
be done with the intent or knowledge requisite for the commission
of the offence of murder. The expression "by that act" does not
mean that the immediate effect of the act committed must be death.
Such a result must be the result of that act whether immediately or
after a lapse of time. ( Om Parkash v. State of Punjab , 1961 SCC
OnLine SC 72).
31.2. Further, to justify a conviction under Section 307,
it is true that it is not essential that bodily injury capable of causing
death should have been inflicted. Although the nature of such
injury actually caused may often give considerable assistance in
coming to a finding as to the intention of the accused, such
intention may also be deduced from other circumstances, and may
even, in some cases be ascertained without reference at all to the
actual injury. What the Court has to see is whether the act,
irrespective of its result, was done with the intention or knowledge
Signature Not Verified
CRL.A. 1013/2025 Page 28 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
and under such circumstances mentioned in the Section. (See Hari
Mohan Mandal v. State of Jharkhand , 2004 (12) SCC 220)
32. A perusal of Ext. PW5/A MLC of PW1 shows injuries
on her neck, which lend corroboration to her version that the
accused had tried to choke/ press her neck while committing the
penetrative sexual assault. This by itself is not sufficient to attract
the offence punishable under Section 307 IPC. What requires
determination is whether the act was committed with the intention
or knowledge of causing death, which is the sine qua non for
constituting an offence of attempt to murder. In the present case,
the materials on record do not indicate such intention.
33. It was submitted by the learned counsel for the accused
that, if at all the crime be proved, given the aforesaid reasons and
young age of the accused, i.e., 23 years old at the time of incident,
the sentence be reduced to the statutory prescribed minimum
punishment which is 10 years. As per Section 6 PoCSO Act (prior
to the 2019 amendment w.e.f. 16.08.2019), the offender is liable to
Signature Not Verified
CRL.A. 1013/2025 Page 29 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
be punished with imprisonment which shall not be less than 10
years but which may extend to life imprisonment. Therefore, the
trial court was empowered to either award a sentence for 10 years
or life sentence and if it was for a fixed period, it could have been
not more than 14 years. Here, the trial court has awarded the
maximum, that is, 14 years and has not given cogent reasons for
awarding the maximum sentence and so, the sentence may be
reduced, argued the learned counsel. It was also submitted that the
accused has no criminal antecedents, and therefore the said
circumstance deserves to be considered as a mitigating factor
while determining the quantum of sentence.
34. In the facts and circumstances of the case, I find
awarding a sentence of 12 years for the offence contemplated
under Section 5(m) punishable under Section 6 PoCSO Act would
serve the ends of justice. The conviction and sentence for the
offence under Section 506 IPC is confirmed.
Signature Not Verified
CRL.A. 1013/2025 Page 30 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
35. In the result, the appeal is partly allowed. The
conviction and sentence of the accused for the offences punishable
under Sections 363, 366 IPC is confirmed. The appellant/ accused
is acquitted under Section 235(1) Cr.P.C. for the offence
punishable under Section 307 IPC. The conviction under Section 6
PoCSO Act is also confirmed. However, the sentence of rigorous
imprisonment of 14 years imposed for the offence punishable
under Section 6 PoCSO Act is modified to a period of 12 years
(twelve years).
36. Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 17, 2026
kd
Signature Not Verified
CRL.A. 1013/2025 Page 31 of 31
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40