Jagdish @ Jagga vs The State (Nct Of Delhi)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of reserving order: 03.08.2026
Date of decision: 31.08.2026
IN THE MATTER OF:
+ CRL.A. 839/2008
JAGDISH @ JAGGA .....Appellant
Through: Ms. Astha, (DHCLSC), Adv.

versus

THE STATE (NCT OF DELHI) .....Respondent
Through: Mr. Satinder Singh Bawa, APP for
the State with SI Ashish Sharma, PS
Nand Nagri.
Mr. Yuvansh Mittar, (DHCLSC) for
R-2.

CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT

VIMAL KUMAR YADAV, J.
1. On 08.07.2003 at about 02:00 PM, the prosecutrix was allegedly
kidnapped by four persons, namely, Jagdish @ Jagga, Deepak @ Chiku,
Anwar @ Guddu and one unknown person, from her house bearing No. G-
4/68 Sunder Nagari and was taken initially to a cinema hall where all the
aforesaid four accused persons and the prosecutrix enjoyed the movie,
namely, ‘Andaaz’ and thereafter, all except Jagdish @ Jagga went away on
the pretext of arranging some money and did not return. Jagdish @ Jagga
took the prosecutrix to a relative’s place where, according to the allegations,
he committed rape upon the victim / prosecutrix.
Signature Not Verified
CRL.A. 839/2008 Page 1 of 11

Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

2. On the other hand, finding that the prosecutrix is missing, her father
lodged a complaint after initially trying to trace out the prosecutrix since the
prosecutrix was taken away in the presence of his another daughter, namely,
Hema aged about 10 years. The police, thus, registered an FIR (Ex.PW-1/A)
on the basis of the report lodged by the father of the prosecutrix on
09.07.2003 (Ex.PW-1/A).
3. The prosecutrix and the said Jagdish @ Jagga were caught by the
father of the prosecutrix, along with the policeman, who were in search of
the prosecutrix. Against the backdrop of these facts and circumstances, the
FIR (Ex.PW-1/A), which was registered on 09.07.2003, culminated into a
chargesheet after requisites of the investigation. To the charges framed
under Section 366/34 IPC (Indian Penal Code, 1860) all the three i.e.
Jagdish @ Jagga, Deepak @ Chiku and Anwar @ Guddu pleaded not guilty
and so was the stand of Jagdish @ Jagga against whom a separate charge
under Section 376 IPC was also framed.
4. Notwithstanding the fact that the accused persons pleaded not guilty,
the learned Trial Court after examining 16 prosecution witnesses, taking into
account the statement of accused persons and the evidence brought on
record as DW-1 (Aslam) and DW-2 (Pushpa), came to the conclusion that
except Jagdish @ Jagga, the other two have no active role and were given
benefit of doubt and were acquitted of charge, whereas Jagdish @ Jagga,
was held guilty under both the charges i.e. under Section 366 IPC and 376
IPC and was sentenced to undergo Rigorous Imprisonment (RI) for 10 years
each in respect of both the offences i.e. Section 366 and 376 IPC and was
further ordered to pay a sum of Rs. 5,000/- each as fine for both the offences
and in default of which, he was further directed to undergo Simple
Imprisonment (SI) for 01 year each.
Signature Not Verified
CRL.A. 839/2008 Page 2 of 11

Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

5. The aforesaid judgment of conviction dated 07.01.2006 and the
punishment awarded through order on sentence dated 09.01.2006 paved the
way for the instant appeal whereby the Appellant has assailed the conviction
by asserting that he did not either kidnapped or committed rape upon the
victim. He has been falsely implicated in this case as he was working with
the father of the prosecutrix in his factory and had demanded his
remuneration for two months, which was due and that is why the father of
the prosecutrix has falsely implicated him in this case. He brought evidence
in his defence where Pushpa (DW-2) endorsed the fact that she had
accompanied the Appellant to claim the money which was due but the father
of the prosecutrix instead of paying remuneration, threatened to teach them a
lesson.
6. Learned counsel for the Appellant against the backdrop of the
aforesaid facts submitted that the prosecutrix went along with the Appellant
of her own as she was in love with him and given the fact that her age in
terms of the Ossification Test (Ex.PW-6/A) being between 14 to 16 years
and considering the margin of error of two years (+ - ) to be read in favour of
the Appellant, she was almost major and can be taken as 18 years of age.
Therefore, the Appellant cannot be held responsible for kidnapping her for
the purpose of seducing or otherwise.
7. It is further submitted that the testimony of the prosecutrix is
otherwise not reliable and, therefore, corroboration to the same is required,
which is not there and as such it would be unsafe to hold the Appellant
responsible for any offence. In addition to that it is further asserted that on
behalf of the counsel for the Appellant that the broader picture is to be
appreciated taking into account the conduct of the prosecutrix, the ground
reality of the society and the surrounding circumstances in which the offence
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CRL.A. 839/2008 Page 3 of 11

Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

allegedly took place. It is elaborated that the offence of kidnapping cannot
take place in view of the fact that the prosecutrix along with her sister and
brother was present in her own house in a thickly populated area. It was not
possible to entice or take away the prosecutrix unless she willingly of her
own accompanied the Appellant. In such circumstances, the Appellant could
neither have abducted her by dragging out forcibly from the house of the
prosecutrix where her sister aged about 10 years too was present.
8. The circumstances clearly and loudly say that the Appellant could not
have forcibly taken away the prosecutrix and she had all the reasons, and
opportunities to avoid going with the Appellant. The younger sister of the
prosecutrix certainly observed all these and could have informed the
neighbours apart from parents etc. that Appellant had taken away
prosecutrix forcibly. Incidentally she also has been examined as PW-2 and
relevant part of her testimony goes as under:
“...I am studying in IV class. Name of my sister is „P‟ (prosecutrix),
All the three accused persons namely Jagga, Guddu and Cheeku
came to our house many days ago. They took away „P‟ (prosecutrix)
after calling her. At that time, my mother had gone to school and my
Papa had gone to his job. My mother came and I narrated the above
said facts to her...”

9. This clearly highlight the fact that the prosecutrix was not forcibly
taken away rather she, according to PW-2, was called and thereafter the
prosecutrix went with them. This cannot be treated as kidnapping as the
prosecutrix has all the reasons to not respond to the call given by the
Appellant and in any case could have very well not accompanied him.
Similarly, the Appellant, his associates, who now stand acquitted, and the
prosecutrix had gone to a cinema hall to watch a movie, where lot of public
presence can very well be imagined but she did not raise any alarm which is
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CRL.A. 839/2008 Page 4 of 11

Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

indicative of the fact that no force was used and that she was a willing party.
There is no evidence that she was lured being a minor, inasmuch as the PW-
2 has stated that the Appellant had called her. Mere calling does not amount
to the luring or enticing anybody including the prosecutrix herein for the
purpose of the offence of kidnapping and certainly this is not a case of
abduction either.
10. The prosecutrix has travelled from Cinema Hall to the house of the
sister of the Appellant and if it was under some kind of force, the prosecutrix
has all the reasons to raise alarm and seek help from the fellow
passengers/persons. Presence of police cannot be ruled out at the cinema
hall, if for some reason, was not available at Bus Station or in the public
transport, which was used by the Appellant to transport the prosecutrix.
11. In this context learned counsel for the Appellant has also drawn the
attention of the Court to the alleged history recorded by the doctor in the
MLC (Ex.PW - 5/A) where it is reflected that the prosecutrix herself went
away with her lover and it has been pointed out that there were no sexual
contact, as noted by the doctor. However, the hymen was found torn.
Whether it was an old tear or recent one is not clear as neither it is recorded
in the MLC (Ex.PW - 5/A) nor the doctor deposed when examined in the
Court. Learned counsel for the Appellant, thus, sought that the Appellant
cannot be held responsible for any offence. Learned counsel for the
Appellant has placed reliance on the following judgments:
a) State (GNCT of Delhi) v. Vipin @ Lalla, 2025 SCC OnLine SC 78
b) Ashok Kumar v. State, (2007)1 JCC 273
c) Harun and Anr. v. State , 2026 SCC OnLine Del 3898.
12. Learned APP, on the other hand, came up with the plea that the
prosecutrix was minor on the day when the incident took place and her
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Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

consent, even if implicit is inconsequential. Learned APP has further pointed
out that the date of birth (D.O.B.) of the prosecutrix should be taken as has
been provided in the Municipal Records and in this context learned APP has
pointed out to the testimony of (PW-14) Shri P.S. Sharma, Sub Registrar,
Shahdara, who produced the Municipal Record of birth of prosecutrix and
according to the same she was born on 05.12.1988, copy of the relevant
entry in this regard is PW - 14/A. According to which the name of the
prosecutrix is there at Sl. No. 3780 of the Birth Register reflecting the
address and the names of the parents of the prosecutrix and the D.O.B.
according to this is 05.12.1988. The age according to this D.O.B should be
calculated as on 08.07.2003 and that comes to 14 years 06 months 02 days.
13. It is asserted on behalf of the learned APP that in view of these facts
the prosecutrix is apparently less than 16 years of age and that takes away
the strength and substance from the arguments of the learned counsel for the
Appellant. Learned APP further submitted that in view of clear and
categorical deposition by the victim that she was forcibly raped and the
corroboration to the same is reflected in the MLC through the torn hymen,
which leaves no escape route for the Appellant. He has been rightly held
guilty by the learned Trial Court through the Impugned Judgment, therefore,
the appeal should be dismissed.
14. While countering to the contentions of the learned APP, it is
submitted by the counsel for the Appellant, that the requirement of law in
terms of Section 94 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as ‘J.J. Act’) and Rule 12 of Juvenile
Justice Model Rules, 2007. It is the birth certificate which is relevant and not
the D.O.B register. As such, there is no conclusive evidence in terms of
Section 94 of the J.J. Act and that is the reason why even the Investigating
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Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

Agency has gone for the Ossification Test, therefore, the age is in terms of
the Ossification Test (Ex.PW - 6/A) should be taken into consideration and
that makes the prosecutrix major.
15. Having considered the submissions made and going through the
record, it appears that the issue of age has been blown out of the portions.
Even if the prosecutrix was major, still her consent was not there and that
makes the Appellant responsible on the face of it. However, in the absence
of any other testimony on record, which is normal in such cases, the
testimony of the prosecutrix needs to be scrutinized and scanned very
meticulously so as to rule out any possibility of same being not correct.
16. No corroboration to the testimony of the victim is there as she, while
being examined by the doctor did not tell about commission of rape but the
doctor in view of the nature of allegations in the FIR has taken all
precautions and a sexual assault kit was seemingly prepared and sent for
forensic examination but nothing against the Appellant is there in FSL report
either inasmuch as semen could not be detected on the exhibits sent for
examination.
17. Certain other lapses have been pointed out by the learned counsel for
the Appellant that the Investigating Officer did not prepare the site plan of
the place of kidnapping and recovery of the prosecutrix nor the IO tried to
join public witnesses in the proceedings or specially at the time of arrest and
has failed to point out the place of recovery and no site plan is prepared
either in this context.
18. The lapses pointed out by learned counsel for the Appellant are not
serious enough and does not go to the roots of the matter in the first place
and in any case, the lapses on the part of the Investigating Officer, cannot be
permitted to be snowballed in such manner, so as to take away the entire
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Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

prosecution’s case. Reference in this context can be made from the
following judgments: -
In C. Muniappan Vs. State of T.N. (2010) 9 SCC 567 , the
Supreme Court held that it was a case of highly defective
investigation but this was not the end of the matter, for if primacy
was given to omissions and lapses by perfunctory investigation,
faith and confidence of the people in criminal justice
administration would erode. In such case, there is a legal
obligation on the part of the Courts to examine prosecution
evidence de hors such lapses, to find out whether evidence is
reliable or not, and to what extent it is reliable and whether the
lapses had affected the object of finding the truth. Reference was
made to several decisions in support of said ratio.

In Ganga Singh Vs. State of M.P., (2013) 7 SCC 278 , it was held
that Courts cannot acquit an accused on the ground that there
were some defects in the investigation, unless such defects cast
reasonable doubt on the prosecution case.

Similar findings were recorded in Sunil Kundu & Anr. Vs. State
of Jharkhand, (2013) 4 SCC, 422 , holding that lapses or
irregularities in investigation would not be material if the
evidence produced on record, despite the said lapses or
irregularities, does not go to the root of the matter and dislodges
the substratum of the prosecution case.

In Surajit Sarkar Vs. State of West Bengal , (2013) 2 SCC 146,
after referring to several earlier decisions, it has been held that
deficiencies in investigation by way of omission and lapses by the
investigating agency cannot themselves justify total rejection of
the prosecution case and where prosecution evidence de hors
such lapses, when carefully scrutinised and evaluated, does not
affect the object of finding of truth.

19. Irrespective of the aspect of prosecutrix being minor or major, the
consistent stand taken by her in her statements, that is, the one recorded by a
Judicial Magistrate under Section 164 Cr.P.C and the substantive statement
recorded in Court, she has maintained that she was enticed and was taken
away by the Appellant Jagdish @ Jagga and was raped. As regards, the
element of force as well as enticement, from the perspective of Appellant,
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Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

there are certain aspects which remained un-clarified and thus, become
questionable, qua which no proper explanation has come on record. If the
prosecutrix was forcibly taken away by the Appellant then where was the
occasion with her to enjoy the movie in a movie theatre, where according to
her own admission, police was also present apart from fellow viewers. Why
she did not make any issue or complaint that she has been forcibly taken by
the Appellant? However, her substantive statement clearly blames the
Appellant for her kidnapping. Her testimony could not be completely shaken
in the cross-examination, thus, has to be accepted.
20. It is not the case of the prosecution or the prosecutrix, that some sort
of threat was extended to the prosecutrix in order to secure her silence.
Additionally, the stand taken by the prosecutrix before the Doctor while
giving the background / history, she has, in a way, not blamed the Appellant
in any manner, rather stated that she was not subjected to any sexual contact.
The doctor who had prepared the MLC has been examined as PW-5, who
has clarified that history of the case was given by the prosecutrix herself.
PW-5 Dr. Lisa has not mentioned the fact as to whether the hymen was
recently torn or was an old tear, while admitting that hymen can also be torn,
due to other factors without establishing any sexual contact, as has also been
argued by learned counsel for the Appellant.
21. Learned counsel for the Appellant has tried to portray that the
Appellant was falsely implicated as in fact, it was essentially a dispute
between the employer and the employee, between the Appellant and father
of the prosecutrix, without success though. The defence witness i.e. DW-2
Pushpa examined on behalf of the Appellant, to show that there was some
monetary dispute between the Appellant and father of the prosecutrix.
However, this fails to evoke any conclusion in favour of the Appellant in
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Signed By:PRIYA
Signing Date:01.09.2026
11:20:31

view of the deposition of the prosecutrix with regard to her being kidnapped
and subjected to sexual assault. On the contrary, the said dispute could be a
reason with the Appellant to do what he did to the prosecutrix. Even if it is
presumed that the prosecutrix accompanied the Appellant out of her own
free will, but it does not give licence to the Appellant to rape her, inasmuch-
as, on the aspect of rape, she is clear that it was a forcible sexual assault on
her by the Appellant. The stand taken by her in the MLC is quite baffling
though as she denied any sexual contact. However, this aspect has not been
put to the prosecutrix in her cross examination. Therefore, in absence of any
confrontation and emergent clarification, the Appellant cannot take
advantage of these facts. As a result, the Appellant fails to carve out a case
in his favour for reversal of the impugned judgment. As such, the judgment
of conviction is upheld.
22. On the aspect of sentence, learned counsel for the Appellant has
sought that he may be considered for the lighter sentence, in view of the fact
that he was about 21 years of age at the time of incident and now after lapse
of about 23 years, things have taken a different shape where the Appellant
has, so is the prosecutrix too, moved ahead in their respective lives with
their families etc. Sending the Appellant to jail at this stage would not bring
any good to anyone, either to the Appellant, to the prosecutrix or to the
Society at large, especially when the Appellant has spent considerable time
in custody. It is sought that the period spend in custody may be treated as
sufficient punishment and may be released against the period already
undergone by him.
23. Considering the entire gamut of facts and circumstances, more
particularly, the fact that more than two decades have gone in between and
that no fruitful purpose is going to be served by sending the Appellant
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Signed By:PRIYA
Signing Date:01.09.2026
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behind bars for completion of entire sentence awarded to him, therefore, the
sentence awarded to the Appellant is reduced to the punishment already
undergone by him, which according to the Nominal Roll is more than 07
years, which is the minimum punishment for offence punishable under
Section 376 IPC. As regards the offence punishable under Section 366 IPC
also, the period undergone is taken as the sentence sufficient, while the
aspect of fine shall remain unaltered to the extent that he shall deposit Rs.
5,000/- each qua the offences under which held guilty, convicted and
sentenced with slight modification qua punishment in default, which shall be
06 months (SI) qua the offence under Section 376 IPC and 03 months (SI)
qua the offence under Section 366 IPC. The sentences to run concurrently.
The Appellant, however, shall be entitled to the benefits of set off under
Section 428 Cr.P.C.
24. As a result, the appeal together with application(s), if any, stands
disposed of accordingly. Appellant to surrender forthwith to undergo the
remaining sentence, if any.
25. Copy of the judgment be transmitted to the learned Trial Court and
Prison Authorities for information and necessary compliance.


VIMAL KUMAR YADAV, J.
AUGUST 31, 2026/ hk/ps/bj/NY
Signature Not Verified
CRL.A. 839/2008 Page 11 of 11

Signed By:PRIYA
Signing Date:01.09.2026
11:20:31