Anarhul Haque vs State
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 07.07.2026
Judgment pronounced on: 09.07.2026
+ CRL.A. 1030/2018
ANARHUL HAQUE .....Appellant
Through: Mr. Rashid Hashmi, Advocate along
with appellant in person.
versus
STATE .....Respondent
Through: Mr. Satinder Singh Bawa, APP for
the State with SI Abhishek Singh,
P.S. Timarpur.
Ms. Inderjeet Sidhu, Advocate for
Victim/Prosecutrix (DHCLSC).
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal filed under Section 374(1) of the Code of
Criminal Procedure, 1970 (Cr.P.C.), by the sole accused in
Sessions Case No. 44/2016, on the file of the Special Court
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(POCSO Act)/Additional Sessions Judge-01 (Central), Delhi,
assails the judgment dated 27.08.2018 and order on sentence dated
01.09.2018 as per which he has been convicted and sentenced for
the offences punishable under Section 376(1) of the Indian Penal
Code, 1860 (the IPC) and Section 6 of the Protection of Children
from Sexual Offences, 2012 (the PoCSO Act).
2. The prosecution case is that on 07.10.2014, at about
07:30 a.m., the accused kidnapped PW1, aged below 13 years and
took her to village Bosantopur, Kotwali police station, New Koot
Bihar, West Bengal. It is further alleged that between 07.10.2014
and 17.07.2015, in village Bosantopur, Kotwali police station,
New Koot Bihar, West Bengal and in Noida, Uttar Pradesh, the
accused repeatedly committed aggravated penetrative sexual
assault upon PW3. Hence, as per the charge-sheet/final report, the
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accused was alleged to have committed the offences punishable
under Sections 363, 366,376 IPC and Section 4 of the PoCSO Act.
3. On the basis of Ext.PW3/A FIS/FIR of PW3, given on
09.10.2013, Crime no. 688/2014, Timarpur Police Station, that is,
Ext.PW3/B FIR was registered by PW6, Woman Sub-Inspector.
PW16, Sub Inspector (SI) was entrusted with the investigation of
the case. On completion of the investigation into the crime, the
chargesheet/final report was filed alleging the 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 25.04.2014, framed a Charge under
Section 363, 376(2)(l)(n) IPC and Section 6 of the PoCSO Act,
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which was read over and explained to him, to which he pleaded
not guilty.
5. On behalf of the prosecution, PWs. 1 to 16 were
examined and Exts. PW1/A, PW2/A-D, PW 3/A-C, PW4/A-B,
PW5/A, PW 6/A-C, PW8/A, PW9/A-B, PW9/B1-B3, PW9/PX,
PW10/A,PW10/X, PW11/B-C,PW11/X1, Mark A, Mark B, Mark
X, Mark Y, Mark XX, Mark YY and Mark Z were marked.
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
led by the prosecution. He denied all those circumstances and
maintained his innocence. He submitted that he married PW1 with
the consent of their families. PW3, the father of PW1, demanded
money from him after his nikah with PW1, which he refused to
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pay. According to him, due to this grudge and the non-fulfillment
of the said demand, PW3 falsely implicated 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
Cr.P.C. is seen to have been 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 in support of his case.
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9. Upon consideration of the oral and documentary
evidence and after hearing both sides, the trial court, vide the
impugned judgment dated 11.11.2014, convicted the accused for
the offences punishable under Section 376(1) IPC and Section 6 of
the PoCSO Act. Accordingly, the accused was sentenced to
undergo rigorous imprisonment for a period of ten years and fine
of ₹500/- and in default of payment of the fine, to simple
imprisonment for a period of one month. Aggrieved, the accused
has preferred this appeal.
10. It was submitted by the learned counsel for the
appellant/accused that the materials on record establish that PW1
voluntarily left her parental home and solemnized the nikah with
the appellant on 08.10.2014. In her testimony before the trial court
as well as in her Section 164 Cr.P.C. statement, PW1 deposed that
she married the appellant voluntarily. Further, the prosecution case
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that PW1 was a child on the date of the incident has not been
proved beyond reasonable doubt. PW1 deposed before the trial
court that she was born in 1995, though she was unable to recall
the exact date or month. Both PW1 and PW3 deposed that the date
of birth entered in the school records is incorrect and that the age
had been intentionally reduced to secure her admission in the
school. PW5, who solemnized the Nikah , also deposed that PW1
was about 19 years of age at the time of marriage. An entry
regarding age in a school register, though relevant under Section
35 of the Indian Evidence Act, 1872 (the Evidence Act), cannot by
itself be treated as conclusive proof of age unless the source on
which such entry was made is proved. Therefore, the impugned
judgment is liable to be set aside, and the accused is entitled to
benefit of doubt.
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11. It was submitted by the learned Additional Public
Prosecutor that there is no infirmity in the judgment calling for an
interference by this Court.
12. Heard both sides and perused the materials on record.
13. The only point that arises for consideration in this
appeal is whether there is any infirmity in the impugned judgment
calling for an interference by this Court.
14. I will first briefly refer to the oral and documentary
evidence relied on by the prosecution in support of the case. The
law was set into motion by PW3, the father of PW1, by filing a
missing person complaint relating to PW1, his daughter. Ext.
PW3/A, the FIS/FIR of PW3, the father of PW1, recorded on
09.10.2014, reads thus:“ My daughter Zoya (PW1) , aged 14 years,
had gone out to fetch milk on 07.10.2014 at around 07:30 a.m. and
has not returned yet. I have been searching for her on my own
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level among many relatives until now….. I suspect that some
unknown person has enticed, lured away, and kidnapped my
daughter Zoya (PW1) . Appropriate action may be taken. ”
15. In Ext. PW1/A 164 statement seen recorded on
17.07.2015, PW1 has stated thus:- She is a 15-year-old girl.
Earlier, she used to reside with her family in a house at Wazirabad,
Gali no. 9, Timarpur. The accused used to reside in her
neighbourhood in Timarpur itself. They got acquainted and they
took a liking to each other. They were afraid that their parents
would refuse their marriage, therefore they did not tell them
anything. On 07.10.2014 she called Anarul (the accused) on her
own and went away with him of her own free will. On the same
day, they went to a madarsa and got married. Then they went to
Bengal, where her in-laws' house is located. The accused works
there as a contractor. Only her mother-in-law lives at her in-laws'
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house. She has a child who was born just a few days back. Two
days ago, she along with her child came to Delhi to meet her father
(PW3) to seek forgiveness. Then she came to know that her father
(PW3) had lodged a missing report. She had voluntarily left her
home and married the accused. None has committed any wrong act
with her or enticed or lured her. She is married now and wants to
live with her husband (the accused).
16. PW1 in the box deposed that she was residing in
Wazirabad with her family at which time the accused was their
neighbour. She became familiar with the accused. Her parents and
the parents of the accused were ready for their marriage and were
negotiating, but her grandmother did not agree to the marriage.
Some of their neighbors also did not agree to their marriage, and
therefore, her father got her married to the accused in a madarsa .
After the marriage, she accompanied him to West Bengal in the
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year 2014, where they resided together for about one year. During
their stay in West Bengal, they frequently had sexual relations as
husband and wife. She gave birth to a female child on the first day
of the month of ramzan in the year 2015, but the child died.
According to PW1, she is unaware of her date of birth as recorded
in her school certificate. Her father had not disclosed her correct
age in the school certificate. She was born in the year 1995. She
had studied in a Government school at Zeenat Mahal. Her father
had wrongly disclosed her age as 16 years and that she does not
know what had been written in her statement to the police.
16.1 The prosecutor is seen to have sought permission to
“cross-examine” PW1 on the ground that she had resiled from her
earlier statement. Permission was granted by the trial court. On
further examination, PW1 deposed that she had disclosed her age
as 15 years before the Metropolitan Magistrate because the police
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officials had instructed her to do so, although she was 19 years old
at that time. She denied the suggestion that she was 15 years old
when her Section 164 Cr.P.C. statement was recorded. She
admitted that her school records mentioned her date of birth as
04.03.2002. PW1 deposed that her father had disclosed a lesser age
to secure her admission, as the school authorities were unwilling to
admit her due to her higher age. She had been living with the
accused since 07.10.2014, and that she had established physical
relations with the accused after their nikah . She admitted that on
07.10.2014, she had telephoned the accused, who thereafter came
to Wazirabad and took her to his native village. She denied the
suggestion that she was below 14 years of age when she
accompanied the accused and also denied that she was falsely
deposing regarding her age.
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16.2 PW1, in her cross-examination, admitted that she had
married the accused on 08.10.2014 with the consent of both her
parents and the parents of the accused. She admitted that in the
nikahnama , all particulars, including her age, had been disclosed
by her father. She denied the suggestion that on 09.10.2014 her
father had demanded ₹1,00,000/- from the accused. She admitted
that after the Nikah, when she left with the accused for his native
village, her father was aware that she was accompanying him.
PW1 deposed that she was 19 years of age when she accompanied
the accused and at the time of her nikah .
17. PW3 deposed that PW1, his daughter, was about 19
years of age. On 07.10.2014, at about 07:30 a.m., his daughter
(PW1) left the house to fetch milk but did not return. He searched
for PW1 but could not trace her. Thereafter, he filed Ext. PW3/A
complaint. In the complaint, he had mentioned the age of his
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daughter (PW1) as 14 years. After a considerable period, his
daughter (PW1) had called her maternal uncle, namely, Raju @
Mohd. Saiyed and informed the latter that she had married and was
residing with her husband. PW1 came to his house along with her
daughter and told him that she had married the accused, and had
accompanied him voluntarily. On 17.07.2015, he had taken his
daughter (PW1) to the police station, from where she was
produced before the Metropolitan Magistrate for recording of her
statement. She was also medically examined at Aruna Asaf Ali
Hospital. On 30.07.2015, the accused came to his house,
whereupon he produced the latter before the police. The accused
was arrested vide Ext. PW3/Carrest memo.
17.1 The prosecutor is seen to have sought permission to
cross-examine PW3 on the ground that he had resiled from his
earlier statement. The request is seen allowed. On further
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examination, PW3 denied the suggestion that his daughter was 14
years of age at the time of the incident. He admitted that he had
submitted Ext. PW2/C photocopy of the application for her
admission to the school where he had mentioned his daughter’s
(PW1) date of birth as 04.03.2002. He could not recall whether he
had disclosed his daughter’s (PW1) age as 15 years when he
produced the latter before the police on 17.07.2015. According to
him, he is unaware as to whether the accused had enticed away his
daughter on 07.10.2014. He denied the suggestion that when the
accused took away his daughter (PW1), she was about 14 years of
age. He denied the suggestion that he was deposing falsely
regarding his daughter’s (PW1) age because she had married the
accused and was residing with him. He denied the suggestion that
he was deposing falsely.
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17.2 PW3 in his cross-examination admitted that he had got
the lesser age of his daughter (PW1) recorded in the school to get
her admitted in the school. His daughter (PW1) was between 19
and 20 years of age. He admitted that his daughter (PW1) had
married the accused and that he himself had arranged the marriage.
He further admitted that he had disclosed his daughter (PW1)'s age
as 19 years at the time of her marriage and that he, along with
other relatives, had participated in the nikah ceremony. He could
not recall whether the marriage had taken place on 08.10.2014.He
admitted his signature in Mark A, the marriage certificate. He
denied the suggestion that he had demanded ₹2.5 lakhs from the
accused and, upon refusal, had lodged a false complaint against the
latter. He denied the suggestion that the accused had taken his
daughter (PW1) with his consent. He denied the suggestion that
the present case had been falsely instituted to harass the accused or
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that he was deposing falsely. He reiterated that his daughter was 19
years of age at the time of her marriage.
18. PW4, the wife of PW3, when examined before the trial
court, supported the case of the latter. PW4 deposed that her
husband (PW1) informed her about the marriage of PW1 and the
accused. They invited PW1 and the accused to their house and
noticed that they were happy. She does not want to pursue the
present case.
19. The trial court has found the accused guilty of the
offences punishable under Section 376(1) IPC as well as Section 6
of the POCSO Act. To determine the age of PW1, PW2, Principal,
East Delhi Municipal Corporation, Adarsh Vidhyalaya, (Hindi)
Ghonda, North Delhi, was examined. She produced the original
student admission register. In this register, it is seen mentioned that
PW1 was admitted to the school on 22.08.2008 in the second
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standard. As per the register, the date of birth of PW1 is
04.03.2002. At the time of admission, PW3, the father of PW1 had
submitted Ext. PW2/C application accompanied by Ext. PW2/D
affidavit. PW2 in her cross-examination admitted that at the time
of admission, the parents of PW1 had not furnished any
documentary proof of the date of birth from the MCD. She also
admitted that the affidavit on stamp paper was not submitted by the
parents of the student at the time of her admission. In the absence
of any proof of the birth of the child, the date of birth furnished by
the parents was considered and entered into the school records.
20. The prosecution has sought to prove the age of PW1 on
the basis of Ext. PW2/A admission register of the first school
attended by her wherein her date of birth is recorded as
04.03.2002. The entry was made on the basis of Ext. PW2/C the
admission form and Ext. PW2/D affidavit submitted by her father,
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PW3. There is no dispute that the school record was prepared on
the information supplied by PW3. It is settled that the record of the
first school attended is an important piece of evidence for
determining age. However, in the case on hand, PW3 admitted in
his testimony that he had mentioned a lesser age of PW1 at the
time of her admission in school so that she could secure admission.
PW1 also stated that the date of birth recorded in the school record
was not her actual date of birth and that PW3 had deliberately
mentioned a lesser age. Thus, the person who supplied the
information for preparing the school record later stated that the
information given is incorrect. In the FIR filed in the year 2014,
the age of PW1 was mentioned as 14 years, and in her 164
statement recorded in the year 2015 as well as in Ext. PW10/A, she
herself disclosed her age as 15 years. The age mentioned in the
FIR is only the information supplied by PW3/informant and is not
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proof of age. Similarly, the age mentioned by PW1 in her 164
statement is also not substantive evidence of her actual date of
birth. These statements cannot establish the age of PW1. It is also
important to note that there is no birth certificate issued by any
Municipal Authority, Panchayat or Hospital on record. No
matriculation certificate has been produced. No ossification test or
any other medical examination for the determination of age was
conducted. Thus, apart from the school record, which itself is
based on the declaration of PW3, there is no independent evidence
regarding the age of PW1.
21. Although the testimony of PW1 and PW3 also do not
independently establish the age of PW1, the admissions made by
PW1 and PW3 regarding the incorrect school entry cannot be
ignored altogether. In these circumstances, the prosecution
evidence regarding the age of PW1 is not free from doubt. In the
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absence of any reliable independent evidence, it cannot be said that
the prosecution has proved beyond reasonable doubt that PW1 was
below eighteen years of age on the date of the incident. That being
the position, an offence of rape as contemplated under Section 375
IPC is not made out in the light of the testimony of PW1 that the
relationship was consensual. The offence punishable under Section
6 PoCSO Act would also not be made out as there is no clear proof
that PW1 was a minor at the time of the incident.
22. Before I conclude, it is also necessary to refer to Ext.
X-1 FIR and Ext. X-2 Judgment. Ext. X-1 FIR, that is, Crime No.
1253/2013, Shakarpur police station, is seen registered on
30.11.2013. PW3 herein is the informant therein and it was based
on the information given by him under Section 154 Cr.P.C. to the
effect that his daughter (PW1 herein) had been kidnapped by some
unknown person on 30.11.2013 at about 06:00 a.m. the crime was
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registered. Admittedly, Ext. X-2 is the copy of the judgment in the
said case. On going through the judgment, it is seen that two
persons were arrayed as the accused persons. They were alleged to
have kidnapped PW1 herein and thereafter committed the offences
punishable under Section 376 IPC, Section 6 POCSO Act as well
as Section 9 of the Prohibition of Child Marriage Act, 2006.
However, when PW1, the alleged victim, was examined before the
court, she turned completely hostile and deposed that nothing had
happened to her and that she had not been kidnapped or sexually
assaulted by anybody. Hence, as per Ext. X-2 judgment dated
30.01.2016, the accused persons were acquitted under Section
235(1) Cr.P.C. The incident in the present case is alleged to have
taken place on 07.10.2014 (less than an year after the earlier
incident) at about 07:30 a.m. The allegations in Ext. PW3/A
FIS/FIR of PW3 are similar to the one given in Ext. X-1 FIR. In
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the present crime also, the case of PW3 is that his daughter had
gone out and not returned and so he believed that his daughter had
been enticed/induced and taken away by some unknown person.
However, PW1, the daughter, enters the scene and then claims in
her164 statement that she had accompanied the accused voluntarily
to his village. PW3 who had given Ext. PW3/A FIS/FIR claiming
his daughter to be a minor, in his testimony before the trial court
resiles from his earlier statement and claims that his daughter was
a major at the time of the incident and that he had intentionally
given a wrong date of birth while she was admitted in the school.
His explanation for giving a wrong date of birth is that the school
authorities would have refused admission had he given the correct
age of his daughter, and therefore, a lesser age had been given.
23. The prosecution in this case has relied on the records
given in the school for proving the age of PW1. PW2, the Principal
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of the school, has admitted that it was based on the Ext. PW2/C
application accompanied by Ext. PW2/D affidavit of PW3, that the
date of birth of PW1 had been recorded in the school register.
Now, PW3, who had given Ext. PW2/D affidavit, himself appears
before the court and says that his affidavit is wrong. If that be so
and if PW3 was well aware that his daughter was not a minor at
the time of the alleged incident, what was the earthly purpose for
him to have given Ext. PW3/A FIS/FIR alleging that his minor
daughter had been kidnapped by some unknown person? So, was
there any demand for money made by PW3 to the accused, which
demand on being refused by the latter, led to the registration of the
present crime (containing false allegations) as contended by the
accused? This appears quite probable especially in the light of the
Ext. X-1 FIR and X-2 judgment. Is giving false complaints one
after the other the modus operandi adopted by PW3 to extract
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money from others as contended by the accused? I refrain from
making further comments or recommending or initiating action
against either the father or daughter, as it appears from the
materials on record that PW1 and the accused are leading a
married life and also have children.
24. In the light of the aforesaid unsatisfactory materials on
record, I find that the trial court went wrong in finding the accused
guilty of the offences punishable under Section 376(1) IPC and
Section 6 of the PoCSO Act.
25. In the result, the appeal is allowed and the impugned
judgment is set aside. The accused is acquitted under Section
235(1) Cr.P.C. of the offences punishable under Section 376(1)
IPC and Section 6 of the PoCSO Act. The accused is set at liberty
and his bail bond shall stand cancelled and the sureties, if any,
shall stand discharged.
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26. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 09, 2026/ kd
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