Dilip Kumar @ Tinu vs State ( Nct Of Delhi)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.10.2026
Date of Decision: 06.11.2026
Uploaded on: 06.11.2026
# CNR No. DLHC010480572024
+ CRL.A. 699/2024 & & CRL.M.(BAIL) 1089/2026
DILIP KUMAR @ TINU ....Appellant
Through: Mr. Devvrat Singh, Adv.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Digam Singh Dagar, APP
CORAM:
HON'BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present appeal has been preferred under Section 415(2) read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter
referred to as ‘BNSS’), challenging the judgment of conviction dated
30.11.2023 and the order on sentence dated 06.03.2024 passed by the learned
Additional Sessions Judge, Fast Track Special Court (POCSO), South-East
District, Saket Courts, New Delhi, in Sessions Case No. 141/2019 , arising out
of FIR No. 88/2019 , registered under Sections 377 and 506 of the Indian
Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter referred
to as ‘POCSO Act’) at Police Station Kotla Mubarakpur, District South-East,
Delhi.
FACTS
Prosecution’s Case
2. The case of the prosecution is that, on 05.03.2019, at about 9:26 p.m.,
information was received at Police Station Kotla Mubarakpur vide DD No.
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48A regarding the alleged sexual assault of a minor boy. Upon the receipt of
the said information, the police reached the concerned spot, where the child
victim, referred to as ‘R’, was found present with his mother. The appellant
by that time had already been apprehended by the members of the public.
3. The child victim stated, that he used to play at Rishi Nagar, where the
appellant would also visit. It was alleged, that approximately one month prior
to the registration of the relevant FIR, the appellant took the child to a room
near a staircase on the pretext that his mother was calling him, and then
subjected him to penetrative sexual assault. The appellant allegedly
threatened to kill the child’s mother, if he disclosed the incident. A similar
incident was also alleged to have taken place about eight days thereafter.
4. According to the prosecution, on 05.03.2019, the child’s uncle noticed,
that the child was bleeding while passing stool. Upon being questioned by his
mother and uncle regarding the same, the child disclosed the aforesaid alleged
incidents. The mother and uncle thereafter went to Rishi Nagar, where they
found the appellant and brought him to their house. The appellant was
thereafter allegedly beaten, before a call was made to the police.
5. The child victim and the appellant were, after the police reached the
concerned spot, taken for medical examination. On the basis of the aforesaid
statement of the child victim, the aforementioned FIR No. 88/2019 was
registered. The statement of the child victim under Section 164 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) was also
recorded. The appellant was arrested and, upon completion of the
investigation, the charge-sheet was also filed.
Framing of Charges
6. Upon consideration of the material on record, the learned Trial Court
took cognizance of the offences on 03.04.2019 and vide order dated
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04.06.2019, charges were framed against the appellant under Sections 377 and
506 IPC and Section 6 of the POCSO Act. It was alleged that the appellant
had subjected the child victim i.e. the minor boy, who was below twelve (12)
years of age, to penetrative sexual assault on two occasions and had threatened
to kill his mother if he disclosed the incidents. The allegations were stated to
attract Sections 5(l) and 5(m) of the POCSO Act, punishable under Section 6
thereof. The appellant then pleaded not guilty to the aforesaid framed charges
and claimed trial.
Prosecution Evidence (PE)
7. In support of its case, the prosecution examined eleven (11) witnesses.
The child victim (‘R’, PW-1) deposed regarding the aforesaid alleged
incidents, the alleged threats extended by the appellant and their subsequent
disclosure to his family. The mother of the child victim (‘S’, PW-3) and his
uncle (‘S’, PW-4) deposed regarding the circumstances in which the alleged
incidents came to light and the events that led to the apprehension of the
appellant.
8. The doctors who had examined the child victim (PW-8A and PW-9)
proved the medical record. The medical examination did not reveal any
external injury or any mark of recent injury over the anal or perianal region
and recorded that the sphincters were intact. The medical opinion however,
stated, that the possibility of penetration by a penis or a penis-like object could
not be ruled out. The concerned doctor explained that no recent injury was
detected and that no anal or perianal swab was collected since the alleged
incidents were approximately two (2) weeks old.
9. The school record of the child victim was proved through the concerned
school official (PW-11). As per the said record, the date of birth of the child
was 15.08.2010 and he was approximately eight (8) years and six (6) months
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old on the date of registration of the FIR. The remaining prosecution
witnesses, namely, HC Anil Yadav (PW-2), HC Harbir Singh (PW-5), SI Ajay
(PW-6), Ct. Vikas (PW-7), ASI Santosh (PW-8) and SI Karamvir Sangwan
(PW-10), deposed regarding the recording of DD No. 48A , registration of the
FIR, medical examination, preparation of the site plan, photographs of the
alleged place of occurrence, arrest of the appellant and the other steps taken
during the investigation. The prosecution evidence (PE) stood closed on
31.10.2023.
Defence Evidence (DE) (Statement under Section 313 CrPC)
10. After the conclusion of the prosecution evidence (PE), the
incriminating circumstances appearing against the appellant were put to him
in his statement recorded under Section 313 CrPC. The appellant denied the
allegations and claimed false implication. He stated, that he had previous
enmity with the uncle of the child victim and that following a quarrel between
them, the present case had been instituted at the instance of the child’s mother
and uncle. He further stated that the investigation had not been conducted
fairly and that no neighbour or independent public witness had been
examined. The appellant declined to lead evidence in his defence.
Impugned Judgment
11. Upon appreciation of the evidence on record, the concerned learned
Trial Court held, that the age of the child victim stood proved through the
school record and that he was below twelve (12) years of age at the time of
the alleged incidents. The testimony of the child victim was found to be
consistent on the material particulars and was held to be corroborated by the
testimonies of his mother (PW-3) and uncle (PW-4).
12. The learned Trial Court observed, that the inability of the child victim
to state the precise dates of the incidents was understandable considering his
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tender age. The absence of any recent injury was held to have been sufficiently
explained by the lapse of time between the alleged incidents and the medical
examination, and the non-examination of any independent public witnesses
was also held not to be fatal to the prosecution case.
13. The learned Trial Court also noticed the discrepancy regarding whether
the alleged incidents had taken place inside a room or on the staircase, as well
as the absence of an explanation as to why the mother had asked the child a
leading question concerning Rishi Nagar. These circumstances were however,
held insufficient to discard the otherwise consistent testimony of the child
victim. The defence of false implication on account of previous enmity with
the child’s uncle was found to be unsubstantiated.
14. The learned Trial Court further held, that the prosecution had
established the foundational facts attracting the presumption under Section 29
of the POCSO Act and that the appellant had failed to rebut the same.
Accordingly, vide judgment dated 30.11.2023, the appellant was convicted
for the offences punishable under Sections 377 and 506 of IPC and Section 6
of the POCSO Act.
Order on Sentence
15. Vide the impugned order on sentence dated 06.03.2024, the appellant
was sentenced to rigorous imprisonment (RI) for a period of twenty-five (25)
years with a fine of ₹10,000/- for the offence punishable under Section 6 of
the POCSO Act and, in default of payment of fine, to undergo simple
imprisonment (SI) for a period of thirty (30) days. For the offence punishable
under Section 506 IPC, he was sentenced to simple imprisonment (SI) for a
period of eighteen (18) months with a fine of ₹5,000/- and, in default of
payment thereof, to undergo simple imprisonment (SI) for a period of fifteen
(15) days. Both substantive sentences were directed to run concurrently and
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the benefit of set-off under Section 428 CrPC was extended to him. No
separate sentence was awarded for the offence under Section 377 IPC, the
concerned learned Trial Court having invoked Section 42 of the POCSO Act.
The order recorded that the fine had not been paid.
16. The learned Trial Court further awarded a compensation of ₹7,50,000/-
to the child victim under Section 357A CrPC read with the Delhi Victim
Compensation Scheme, 2018 and the POCSO Rules. An amount of
₹1,50,000/- was directed to be released immediately, while the remaining
amount was directed to be kept in a fixed deposit (FD) which was stated to be
released further in five (5) equal annual instalments commencing from
31.03.2025.
Present Proceedings
17. Aggrieved by the aforesaid judgment of conviction and the order on
sentence, the appellant preferred the present criminal appeal in
which vide order dated 07.08.2024, the delay of ninety-eight (98) days in
filing the appeal was condoned and the same was admitted.
18. During the pendency of the appeal, the Delhi State Legal Services
Authority (DSLSA) informed this Court that the compensation of ₹7,50,000/-
awarded to the child victim had been credited to the concerned account on
19.03.2025. Further, the appellant’s application seeking suspension of
sentence was dismissed vide order dated 29.07.2025, by a Coordinate Bench
of this Court. Presently, a fresh application for the same is pending
consideration.
SUBMISSIONS ADVANCED
On behalf of the appellant
19. Learned counsel appearing on behalf of the appellant submitted, that
the prosecution case rests principally upon the testimonies of the child victim,
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his mother and his uncle, all of whom are related witnesses. That no
independent witness had been examined, despite the alleged incidents having
taken place in a residential building at Rishi Nagar. It was also pointed out
that the alleged incidents pertain to February 2019 and preceded the
amendment to the POCSO Act.
20. The learned counsel referred to the testimony of the child victim and
submitted that he was unable to state the date of either incident. That the child,
stated that the incidents had taken place during summer, whereas the
prosecution places them in February 2019. It was submitted that although
some latitude must be extended to a child witness regarding the precise date
and time, this discrepancy assumes significance when considered with the
other infirmities in the prosecution's case.
21. It was further submitted, that the child, stated that he used to play with
his cousins at Rishi Nagar and that his two paternal aunts resided there. That
however, neither the cousins nor the aunts were examined during the
investigation or at the trial. According to the learned counsel, they were
material witnesses who could have corroborated the presence of the child and
the appellant at the alleged place of occurrence.
22. Learned counsel further submitted that there is material uncertainty
regarding the place of occurrence. That while the initial version refers to a
room near the staircase, the child stated during cross-examination that the
alleged act had taken place on the staircase and not inside a room and that the
photographs placed on record depict a staircase and do not show any room. It
was further submitted that the child was never taken to the alleged place of
occurrence and the site plan was prepared at the instance of his uncle, with
whom the appellant claimed previous enmity.
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23. It was also submitted that the child stated, that an unknown person had
seen him with the appellant on the staircase and that he had disclosed the
incident to that person, however, the said person was neither identified nor
examined. The learned counsel contended that this version was inconsistent
with the child’s explanation that he did not disclose the incident to his family
members because of the threat allegedly extended by the appellant.
24. The learned counsel further pointed out that materially different
versions emerge regarding the manner in which the alleged incident came to
light. That the child stated that his mother was suspicious and had asked his
younger brother to make discreet inquiries from him, following which the
brother disclosed the incident to their mother and that the mother on the other
hand stated, that the child’s uncle informed her about the bleeding and that
she thereafter questioned the child herself. It was submitted that the uncle
gave yet another version by stating that he noticed the child bleeding while
passing stool and asked the mother to inquire from him, whereupon the child
made the disclosure in his presence.
25. It was submitted that the younger brother, to whom the child claimed
to have first disclosed the incident, was alive during the investigation but his
statement under Section 161 CrPC was not recorded. The learned counsel also
questioned the natural conduct attributed to the mother contending, that if she
genuinely suspected that her child had been sexually assaulted, it was
improbable that she would leave the inquiry to another minor child.
26. Learned counsel further referred to the cross-examination of the child,
wherein he initially stated that he had signed his complaint at the police station
and thereafter stated that it was signed at home. That the child also stated that
he had signed the complaint without reading it and admitted that he had done
so at the instance of his mother, though he subsequently volunteered an
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explanation. It was contended that these circumstances lend support to the
possibility of tutoring.
27. Learned counsel further submitted that the prosecution case originated
from the child allegedly passing blood in his stool and that the medical record
however, did not reveal any external injury or any mark of recent injury over
the anal or perianal region and recorded that the sphincters were intact. It was
argued that the medical opinion merely stated that the possibility of
penetration could not be ruled out and that a conviction cannot rest upon a
mere possibility and the charge must be proved beyond reasonable doubt.
28. It was further submitted that the owner or any resident of the building,
the child’s aunts and cousins and the person who had allegedly seen the child
with the appellant were material witnesses. That their non-examination,
despite their availability, warranted an adverse inference under Section 114(g)
of the Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act').
29. Learned counsel submitted that the appellant had specifically taken the
defence of previous enmity with the child’s uncle . That the uncle admittedly
knew the appellant and had participated in apprehending and beating him
before the police arrived. That the site plan was also prepared at his instance.
It was contended that this defence had been rejected by the concerned learned
Trial Court without properly examining the surrounding circumstances.
30. It was accordingly submitted that the inconsistencies concerning the
disclosure, the doubtful identification of the place of occurrence, the absence
of supporting medical evidence and the non-examination of material
witnesses cumulatively create a reasonable doubt regarding the prosecution's
case. That the foundational facts having not been proved, the presumption
under Section 29 of the POCSO Act could not have been invoked against the
appellant.
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31. Learned counsel also relied upon the judgment of this Court in Vikash
v. State (NCT of Delhi), 2026 SCC OnLine Del 5787 , wherein the benefit of
doubt was extended in view of the material inconsistencies in the different
versions of the prosecutrix, the failure to properly identify and prove the
alleged place of occurrence and the absence of corroborative evidence.
Further reliance was also placed upon another decision of this Court in Suraj
Kumar v. State (NCT of Delhi), 2026 SCC OnLine Del 7508 , wherein the
benefit of doubt was extended on account of material contradictions between
the testimonies of the child victim and her mother on material particulars,
coupled with the absence of corroborative medical evidence. It was
accordingly prayed that the impugned judgment of conviction and the order
on sentence be set aside and the appellant be acquitted.
On behalf of the State
32. Per contra , the learned Additional Public Prosecutor (hereinafter
referred to as 'APP') opposed the appeal and submitted, that the age of the
child victim stood duly proved through the school record produced by PW-
11. That the child was about eight (8) years old at the relevant time and was,
therefore, below twelve (12) years of age.
33. It was submitted that the testimony of the child victim materially
supported the prosecution's case and that it remained unshaken on the
essential particulars. The learned APP further relied upon the presumption
under Section 29 of the POCSO Act.
34. He further referred to the testimony of PW-8A and submitted that the
possibility of penetrative sexual assault had not been ruled out. That the
absence of any recent injury was explained by the fact that the medical
examination had been conducted nearly fourteen days after the alleged
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incidents. It was, therefore, submitted that the medical evidence did not
contradict the account of the child victim.
35. It was accordingly submitted that the prosecution witnesses sufficiently
corroborated the version of the child victim and that the concerned learned
Trial Court had appreciated the evidence in its correct perspective. It was
submitted that the impugned judgment suffers from no illegality or perversity
and that the present criminal appeal is liable to be dismissed.
ANALYSIS AND FINDINGS
36. This Court has heard the learned counsel appearing on behalf of the
appellant as well as the learned APP for the State and has also perused the
evidence placed on record.
37. The principal questions that arise for consideration before this Court in
the present appeal are whether the testimony of the child victim, when read
with the remaining evidence on record, proves the charged offences beyond
reasonable doubt and whether the discrepancies concerning the dates, place
of occurrence, disclosure of the incidents and the medical examination affect
the core of the prosecution's case or not. This Court is also required to examine
whether the prosecution established the foundational facts necessary to attract
the presumption under Section 29 of the POCSO Act or not.
38. At the outset, the age of the child victim does not admit of any serious
dispute. Ms. Lovely Wadhwa (PW-11), HOS/Vice-Principal of the concerned
school, proved the certificate concerning the date of birth of the child victim,
the certified copy of his admission form, the relevant entry in the admission
register and the copy of the birth certificate furnished at the time of his
admission. The aforesaid school record consistently records his date of birth
as 15.08.2010. Accordingly, on the date of registration of the FIR, i.e.
06.03.2019, the child victim was approximately eight (8) years, six (6) months
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and nineteen (19) days old and was necessarily younger on the dates of the
alleged incidents. He was therefore, a ‘child’ within the meaning of Section
2(1)(d) of the POCSO Act and was also below twelve (12) years of age. The
aggravating circumstance contemplated under Section 5(m) of the POCSO
Act consequently stands established.
Testimony of the Child Victim
39. It is settled, that the testimony of a child victim may, by itself, form the
basis of conviction if it inspires confidence and is found reliable upon careful
scrutiny. At the same time, such testimony must remain free from material
infirmities and inherent improbabilities. The Court is required to distinguish
between discrepancies affecting the substratum of the prosecution's case and
variations relating to peripheral details which may arise because of the tender
age of the witness, lapse of time or the circumstances in which the testimony
is recorded.
40. In Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 , the
Supreme Court explained the manner in which the testimony of a child
witness and the discrepancies occurring therein are required to be appreciated.
The relevant observations read as under:
“ 5. Admittedly, Bhavya (PW 2), who at the time of
occurrence was about four years of age, is the only
solitary eyewitness who was rightly not given the
oath. The time and place of the occurrence and the
attending circumstances of the case suggest no
possibility of there being any other person as an
eyewitness. The evidence of the child witness
cannot be rejected per se , but the court, as a rule
of prudence, is required to consider such
evidence with close scrutiny and only on being
convinced about the quality of the statements
and its reliability, base conviction by accepting
the statement of the child witness. The evidence
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of PW 2 cannot be discarded only on the ground
of her being of tender age. The fact of PW 2 being
a child witness would require the court to
scrutinise her evidence with care and caution. If
she is shown to have stood the test of cross-
examination and there is no infirmity in her
evidence, the prosecution can rightly claim a
conviction based upon her testimony alone.
Corroboration of the testimony of a child witness
is not a rule but a measure of caution and
prudence. Some discrepancies in the statement of
a child witness cannot be made the basis for
discarding the testimony. Discrepancies in the
deposition, if not in material particulars, would
lend credence to the testimony of a child witness
who, under the normal circumstances, would like
to mix-up what the witness saw with what he or
she is likely to imagine to have seen. While
appreciating the evidence of the child witness, the
courts are required to rule out the possibility of
the child being tutored. In the absence of any
allegation regarding tutoring or using the child
witness for ulterior purposes of the prosecution,
the courts have no option but to rely upon the
confidence inspiring testimony of such witness
for the purposes of holding the accused guilty or
not. ” (Emphasis supplied)
41. In State of M.P. v. Balveer Singh, (2025) 8 SCC 545 , the Supreme
Court summarised the principles governing the appreciation of the testimony
of a child witness. The relevant observations of the aforesaid judgment read
as under:
“ 43. From the above exposition of law, it is clear
that the evidence of a child witness for all
purposes is deemed to be on the same footing as
any other witness as long as the child is found to
be competent to testify. The only precaution
which the court should take while assessing the
evidence of a child witness is that such witness
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must be a reliable one due to the susceptibility of
children by their falling prey to tutoring.
However, this in no manner means that the
evidence of a child must be rejected outrightly at
the slightest of discrepancy, rather what is
required is that the same is evaluated with great
circumspection. While appreciating the
testimony of a child witness the courts are
required to assess whether the evidence of such
witness is its voluntary expression and not borne
out of the influence of others and whether the
testimony inspires confidence. At the same time,
one must be mindful that there is no rule
requiring corroboration to the testimony of a
child witness before any reliance is placed on it.
The insistence of corroboration is only a measure
of caution and prudence that the courts may
exercise if deemed necessary in the peculiar facts
and circumstances of the case. ” (Emphasis
supplied)
42. Further, the distinction between normal discrepancies and material
discrepancies was explained by the Apex Court in State of Rajasthan v.
Kalki, (1981) 2 SCC 752 . The relevant portion reads as under:
"8...... In the depositions of witnesses there are
always normal discrepancies however honest and
truthful they may be. These discrepancies are
due to normal errors of observation, normal
errors of memory due to lapse of time, due to
mental disposition such as shock and horror at
the time of the occurrence, and the like. Material
discrepancies are those which are not normal,
and not expected of a normal person ......."
(Emphasis supplied)
43. Now in the present case, the child victim (PW-1) identified the
appellant and gave a clear account of the acts committed upon him. He stated,
that the appellant had inserted his penis into his anus, had subjected him to
the said act on two occasions separated by an eight days interval, and had
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threatened to kill his mother if he disclosed these incidents. His testimony
showing the same is as follows:
PW-1’s Testimony
“ PW-1
Statement of Master 'R' S/o 'N' (Full name and
address is withheld as per law and details mentioned
at serial number 1 in the list of witnesses).
In order to understand the maturity of the child and
to understand as to whether he is a competent
witness, I have asked following questions:
Q.1: Do you study?
Ans: Yes. I am studying in class Ivth A.
Q.2: What is your age?
Ans: I am 9 years old.
Q.3: What is your date of birth?
Ans: 15th August, but I do not recollect the year
of my birth.
Q.4: How many brothers and sisters you have?
Ans: We were two brothers and one sister. One of
my brother expired and now we are one brother and
sister.
Q.5: Did you not go to your school today?
Ans: I did not go to the school today as I have
to come to the court.
Q.6: Do you know where you have come today
and why?
Ans: I have come to the court to depose.
Q.7: Whether one should speak truth or lie?
Ans: One should speak truth.
Q.8: Can you tell the colour of the t-shirt which
you are wearing?
Ans: Yes. It is red colour (correctly mentioned the
colour).
Q.9: Can you tell, today is which day of the week?
Ans: Today is Thursday.
Q.10: Are you tutored or threatened to give
evidence today?
Ans: No. Nobody has threatened or tutored me.
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Considering the answers given by the witness,
having conversation with him, I have satisfied
myself that the child is intelligent. He
understands the questions and can answer them
in appropriate manner. I am convinced that he is
a competent witness. However, he is only 9 years
of age and therefore, cannot be expected to
understand the purpose and consequences of
oath. Being a child witness I deem it appropriate
to record the statement of witness in the form of
questions and answers.
Without Oath.
Q.1 Can you tell which is the present year?
Ans: Yes. It is the year 2019.
Q.2. Can you tell in which class you were studying
at the time of incident?
Ans: At the time of incident, I was studying in IIIrd
standard.
Q.3. Can you disclose the name of your mother and
elder sister?
Ans: My mother's name is 'S' and my elder sister's
name is 'T' (witness has correctly mentioned the
names) . The name of my brother was 'L' but he is
no more.
Q.4. What happened with you and how do you came
in touch with the accused?
Ans: My two Aunts were residing at Rishi Nagar
and they had small kids. I used to play with the kids
in the street. One boy Dilip used to come at that time
and he used to tell me to get match box while I was
playing with the kids Ridhi and Sidhi. The boy used
to come there and mere saath galat kaam karta
tha. I do not recollect the date of incident but it
was summer time.
Q.5. What do you mean by 'galat kaam'?
Ans: By galat kaam, I mean to say that meri pant
kholkar mere ander daalta tha or bolta tha ki mai
teri mummy ko maar dunga. Mujhe blood bhi ata
tha.
Q.6. What do you mean by 'ander daalta tha'?
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Ans: The accused used to insert his main part in
my anus. (the witness has pointed out towards his
backside).
Q.7. Can you tell where is the main part situated?
Ans: (The witness has pointed towards his penis
and said yaha par ).
Q.8. Can you tell the place where the accused
used to do galat kaam?
Ans: The accused used to take me to a room near
the staircase and the said room was very near to
the house of my Aunt.
Q.9. Can you identify the spot if the photographs
of the same are shown to you?
Ans: Yes.
At this stage, the alleged photographs of the spot
have been shown to the witness and he has
mentioned that these photographs of the same
place where the accused used to take him. The
photographs are marked Ex.P-1, Ex.P-2 & Ex.P-
3 for the purpose of reference.
Q.10 Why did you accompany the accused to his
room?
Ans: Mere ko bolta tha kabhi chini le aa, kabhi
kuch aur. Mere ko pakad kar le gaya.
Q.11. Can you tell how many times, the accused
did the alleged galat kaam?
Ans: Pehle ek baar kiya fir uske 8 din baad fir kiya
(the accused first did ganda kaam and an after
about 8 days he again did ganda kaam).
Q.12. Can you further elaborate the first episode
of sexual assault?
Ans: Din ka samay tha. Again said, shaam ka time
tha.
Q.13. Can you further elaborate and tell the
duration of the first episode?
Ans: The accused used to insert his private part
and thereafter, wo yu....yu.... karta rehta tha. (The
witness is repeatedly moving his body in front
and back while explaining the expression
“yu....yu....”)
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Q.14. What happened after the first episode of
sexual assault ?
Ans: I went home and on the next day, blood
came in my stool).
Q.15. Did you share the incident with anybody?
Ans: I told my mother that the blood has come
out of the stool. My mother told me that it can
happen because of constipation. I also shared this
with my younger brother 'L' who is no more. I
did not tell the episode of ganda kaam to my
family members as accused has threatened me
that he would kill my mother in case, I disclose
about ganda kaam to anyone.
Q.16. Now, can you tell about the second episode
which allegedly took place ?
Ans: The second episode also took place at the
same place as identified by me in the
photographs. Even after the second episode of
ganda Kaam , blood came in my stool and this fact
was mentioned by me to my mother.
Q. 16(a) Can you tell if the incident took place in
this year or the previous year?
Ans: The incidents took place in this year i.e.
2019 but I do not recollect the exact month and
date.
Q.17. Can you tell how your family members
came to know about the incident?
Ans: My mother was suspicious and she used to
ask me "kisi ne tere saath Rishi Nagar me galat
Kaam toh nahi kiya" . She went for work and
prompted my brother to make discrete inquiry
from me as I used to share everything with him.
My brother made inquiries from me and I
disclosed the episodes to him.
Q.18 What happened thereafter?
Ans: My mother returned from work and my
brother disclosed the incident to her. (Vol. My
mother is doing packing work). My mother
shared the information with my uncle who told
her that he would bring the accused. My uncle 'S'
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(chacha) and Golu bhaiya brought the accused to
our house and thereafter, my family members
gave beatings to him with belt.
Q.19. How the police came into picture?
Ans: My mother made a call at 100 number and
police officials arrived at our house. The police
officials made inquiries from me and recorded
my statement Ex.PW1/A bearing my signature at
point A and arrested the accused. The accused
was taken by the police to the police station
where he was beaten by my mother.
Q.20. Were you taken for medical examination?
Ans: Yes. I went to the hospital for medical
examination. My mother and chacha also
accompanied me to the hospital.
Q.21. Did the police take you to the spot of
occurrence as shown in the photographs?
Ans: No.
Q.22. Then, how did they found the place of
occurrence?
Ans: Dilip went along with the police and he
might have shown the place.
Q.23. Have you come to the court earlier also?
Ans: Yes.
At this stage, an envelope duly sealed with the
seal of 'RKP' is taken from the judicial file. Same
is opened from which the proceedings under
Section 164 CrPC (running into four pages) are
taken out. The statement of victim child is shown
to the witness on which he identifies his
signatures at point A. The statement is
Ex.PW1/B.
Q.24. What did accused tell you after the second
episode?
Ans: He told me that he would kill my mother
and family members in case I disclose about
ganda kaam to anyone.
Q.25. Can you tell the time gap between the time
when your mother came to know about the
episode and the time when the complaint was
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lodged with the police?
Ans: My mother came to know about the episode
after about 8 days of the second episode. We had
called the police on the same day when my
mother came to know about the episode.
Q.26. Do you want to tell anything else?
Ans: No.
I can identify accused, if shown to me.
At this stage, accused Dilip, who is facing trial in
the present case, is shown to the witness through
video link and after seeing him, the witness
correctly identifies the accused Dilip.
XXXXXX by Raj Singh, LAC for accused.
Q. Who all have accompanied you to the court
today?
Ans: I have come to the court along with my mother
and uncle (chacha).
For the first time, I came in contact with the accused
at Rishi Nagar. It was evening time. I met the
accused for the first time.
(Court Question: Can you tell the time since you
knew the accused?
Ans: I knew the accused much before the first
episode of sexual assault).
The accused is a friend of my uncle (chacha) 'S'.
Golu is not friend of accused (Vol. Chacha thode-
thode se dost hai ). I had seen the accused Golu and
Dilip together on number of occasions. My mother
did not take me to the doctor (Vol. Police walo ko
phone kiya tha fir mera medical hua tha ). Police had
not made any inquiries from the kids of my Aunt.
The place where the accused committed galat kaam
was either on the fifth or sixth floor. The spot was
located near the house of my paternal Aunt (Tai) but
I do not know her name. The accused did the galat
kaam in the staircase and not in the room.
Q. Did anybody on the first, second or third floor of
the building noticed you and the accused?
Ans: Ek din uncle ne dekh liya tha, who sidhiyu se
utar rahe the. Dilip bhaag gaya tha. Mene unhe
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bataya bhi tha par unohne kuch nahi kiya. (On one
day, an uncle saw me and Dilip in the staircase. The
accused Dilip ran away from there. I disclosed to the
uncle that accused was doing ganda kaam with me
but he did not take any action).
I have told to the police that my two Aunts were
residing at Rishi Nagar and they had small kids and
that I used to play with the kids in the street. I have
also told to the police that one boy Dilip used to
come at that time and he used to tell me to get match
box while I was playing with the kids Ridhi and
Sidhi. (Confronted with the statement Ex.PW1/A
where it is not so recorded). I have also mentioned
the police that Mere ko bolta tha kabhi chini le aa,
kabhi kuch aur. (Confronted with the statement
Ex.PW1/A where it is not so recorded). It is
incorrect to suggest that prior to the first episode of
sexual assault, a fight took place between my uncle
(chacha) and accused. It is incorrect to suggest that
I am deposing falsely
against the accused at the instance of my uncle
(chacha).
My chacha is working as a labourer (Vol. Patthar
uthana ka kaam karte hai ).
Q. Can you read and write Hindi Language?
Ans: I can read and understand Hindi language.
At this stage, counsel has drawn the attention of the
witness to the previous statement Ex.PW1/A and he
has asked the following questions:
Q. Where did you sign the statement Ex.PW1/A? At
the police station or at home?
Ans: The witness has nodded his head mentioning
that he has signed it in the police station and
thereafter, he has stated that he has signed it at
home.
I have not read the statement Ex.PW1/A on which I
signed.
Q. Did you sign the statement at the instance of your
mother?
Ans: It is correct. (Vol. Mummy ne toh kuch nahi
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bola tha. Mene sign kar diye ).
It is incorrect to suggest that.I am deposing at the
instance of my mother or uncle (chacha). (My
mother did not know the accused prior to the
incident (Vol. Mummy toh Rishi Nagar me jaati hi
nahi thi jada ). I do not know where the accused
resides.It is incorrect to suggest that no galat
kaam was committed with me by the accused or
that I am deposing falsely at the instance of my
mother and uncle. It is incorrect to suggest that I
have made the statement under Section 164
Cr.P.C at the instance of my mother and uncle. I
have told to the police that my mother was
suspicious and she used to ask me "kisi ne tere
saath Rishi Nagar me galat Kaam toh nahi kiya" .
I have also told to the police that my mother went
out for work and prompted my brother to make
discrete inquiry from me as I used to share
everything with him and that my brother made
inquiries from me and I disclosed the episodes to
him. (Confronted with the statement Ex.PW1/A
where it is not so recorded) . As far as I recollect
my brother died in the month of June, 2019.”
(Emphasis supplied)
44. So as can be seen from the aforesaid reproduced account of PW-1’s
testimony, it remained intact on the essential particulars even during cross-
examination. The child knew the appellant from before and there is, therefore,
no question of mistaken identity. His inability to state the precise dates of the
two incidents does not, in the facts of the present case, discredit, the
occurrence. The child was only about eight (8) years old and consistently
stated that the incidents had occurred within approximately one month before
the matter was reported. His description of the period as “summer
time” cannot be treated as a precise statement concerning the calendar month.
That expression, coming from a child of tender age, does not outweigh his
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consistent account regarding the identity of the appellant, the nature of the
acts committed upon him, their repetition and the threat extended to him.
Place of Occurrence and Site Plan
45. The discrepancy concerning whether the incidents occurred inside a
room near the staircase or on the staircase has also been considered. In his
examination-in-chief, the child referred to a room near the staircase, whereas
during cross-examination, he stated that the act had taken place on the
staircase and not inside a room. The discrepancy here therefore concerns the
precise spot within the stairway area at Rishi Nagar. And in the opinion of
this Court, it does not amount to a complete failure to identify the place of
occurrence. The child identified the photographs depicting the staircase as the
place to which the appellant used to take him. The inability of a child of such
tender age to describe the precise spot with complete accuracy cannot render
his entire account baseless or unproved. To hold otherwise, would amount to
testing the testimony of an eight-year-old child by the degree of exactitude
expected from an adult witness and thereby allowing a discrepancy
concerning the exact place of occurrence to overshadow his consistent
account of the acts committed upon him.
46. It is true that the site plan was initially prepared at the instance of the
child’s uncle (PW-4). The Investigating Officer (IO) (PW-10) however stated,
that the site plan was subsequently shown to the child victim, who affirmed
the same and appended his signatures thereon. This circumstance neither
effaces the child victim’s identification of the place of occurrence in his
testimony before the Court nor affects his consistent account concerning the
identity of the appellant, the acts of penetration committed upon him and the
threat extended to him. It, therefore, does not justify the rejection of his
testimony.
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Disclosure of the Incidents
47. The variations concerning the manner in which the incidents came to
light relate principally to the sequence of disclosure. The child stated that his
mother was suspicious and had asked his younger brother to make inquiries
from him. His mother (PW-3) and uncle (PW-4),on the other hand, stated that
the uncle noticed blood while the child was passing stool, whereafter the
mother questioned him and he disclosed the acts committed by the appellant.
What remains common in their versions is that the bleeding noticed while the
child was passing stool led to inquiries within the family, that the child named
the appellant and disclosed the acts committed upon him and that the matter
was thereafter reported to the police.
48. The mother and uncle were not eyewitnesses to the penetrative sexual
assault. Their evidence is relevant to the circumstances in which the disclosure
was made, the apprehension of the appellant and the reporting of the matter.
The variation regarding which family member first questioned the child does
not displace his direct testimony regarding the acts committed upon him.
49. This Court has also noticed, that the mother asked the child whether
anyone had done anything wrong with him at Rishi Nagar. The prosecution
has not furnished any clear explanation for the manner in which the question
was framed. The said circumstance only requires the testimony of the child to
be scrutinised with caution. It does not, however follow, that his entire
account was a product of that question. The child independently described the
nature of the penetrative act, the manner in which it was committed, its
repetition and the threat extended by the appellant. His substantive testimony
before the Court cannot be discarded solely because the initial inquiry made
by his mother referred to Rishi Nagar.
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50. The child’s uncertainty regarding whether his complaint was signed at
home or at the police station, his admission that he had signed it without
reading it and his statement that he had signed it at the instance of his mother
have also been considered. And in the opinion of this Court, they do not render
the child’s substantive testimony before the Court inadmissible or unreliable.
The child furnished his account in his own words and was subjected to a
detailed cross-examination. His presence with his mother and uncle during
the investigation and trial was natural considering his tender age and the
nature of the allegations. In the absence of any further material, the same does
not establish tutoring.
Non-examination of Other Witnesses
51. The child stated during cross-examination that an unidentified person
had once seen him with the appellant on the staircase and that he had disclosed
the incident to that person. The said person was not stated to have witnessed
the penetrative act and no particulars were disclosed by which he could have
been traced. The prosecution does not rely upon that person to prove the
occurrence either. His non-examination, therefore, does not displace the direct
account of the child victim.
52. The child’s younger brother, his paternal aunts, and cousins, were also
not eyewitnesses to either of the incident. The younger brother could at best,
have deposed regarding the disclosure allegedly made to him, while the aunts
and cousins could have spoken about the child visiting and playing at Rishi
Nagar. The omission to examine them is not a circumstance which would
justify an adverse inference under Section 114 illustration (g) of the Evidence
Act when the child victim himself was examined and his testimony was tested
through cross-examination.
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53. Section 134 of the Evidence Act makes it clear that no particular
number of witnesses is required for proof of a fact. The relevant consideration
is the quality and reliability of the evidence that is produced. The mother and
uncle of the child cannot be treated as unworthy of credit merely because they
are related to him. Their testimonies, upon careful scrutiny, remain consistent
regarding the bleeding noticed, the subsequent disclosure, the apprehension
of the appellant and the reporting of the matter. The non-examination of any
independent public witness is therefore, not fatal to the prosecution's case.
Medical Evidence
54. Dr. Swati Tyagi (PW-8A) found no recent injury over the anal or
perianal region and recorded that the sphincters were intact. She nevertheless
opined that the possibility of penetration by a penis or a penis-like object
could not be ruled out. She further explained, that the medical examination
was conducted on 06.03.2019, whereas the alleged incidents were
approximately two (2) weeks old. That no anal or perianal swab was collected
because of the lapse of time and because the child had changed his clothes,
bathed and passed stool several times during the intervening period. Her
testimony for the relevant purposes is reproduced below:
PW-8A’s Testimony
“PW-8: Statement of Dr. Swati Tyagi, working
as Assistant Professor, Department of Forensic
Medicine, AIIMS, New Delhi.
On S.A
I have been working as a Assistant Professor in the
department of Forensic Medicine, AIIMS, New
Delhi since the year 2017. On 06.03.2019 at
around 12:16 AM child victim master 'R' was
brought by SI Karambir with alleged history of
anal intercourse on 17/24.02.2019. Mother of
child victim also accompanied them. After
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consent given by mother of child victim for
medical examination of the child victim, I
conducted medical examination and no mark of
recent injury present over anal /perineal area at
that time. Blood sample of child victim was
obtained on FTA card and further handed over
to police staff alongwith sample seal. After
medical examination of child victim, I opined
that there was no frank injury present on the
anal and perineal area but the possibility of
penetration by penis or penis like object cannot
be ruled out. I prepared report to this effect
which is now Ex. PW-8/A (running into two
pages) bearing my signature at point -A on each
page. Due to lapse of time as incident alleged to
be happened on 17/24.02.2019 and examination
was done on 06.03.2019, no fresh injury was
detected. No anal and perineal swab was taken at
the time of examination as alleged incident was
old around two weeks and patient has changed
the clothes and took bath /defecation many times
since the incident.
XXXXXX by Sh. V.K. Gupta, Ld. Counsel for
accused.
It is wrong to suggest that I made the said report
in mechanical manner. ” (Emphasis supplied)
55. The aforesaid medical opinion does not by itself, prove the act of
penetration. At the same time, it does not contradict the account of the child
victim either. Penetrative sexual assault under the POCSO Act includes
penetration to any extent and does not require proof of a bodily injury. The
absence of a fresh injury or forensic material after a lapse of approximately
two weeks in the present case cannot therefore be treated as being
determinative of the entire case. The conviction does not rest upon an
assumption that the bleeding was medically proved to have resulted from the
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assault. It rests upon the substantive testimony of the child victim, which the
medical evidence does not render impossible or inherently improbable.
Defence of False Implication
56. The defence of previous enmity with the child’s uncle also remains
unsubstantiated. PW-4 admitted that he knew the appellant from childhood
but denied that any prior quarrel had taken place or that the child had been
used to settle a score. The appellant in his statement under Section 313 CrPC,
did not disclose any specific date, cause or surrounding circumstance of the
alleged quarrel and did not lead any evidence in support of his defence. The
beating of the appellant after he was brought to the house of the child was
undoubtedly improper. That circumstance however, does not by itself
establish, that the allegations of sexual assault were fabricated. That defence
remains a bare assertion and does not render the direct account of the child
improbable.
Decisions Relied Upon by the Appellant
57. The appellant has relied upon the decisions of this Court in Vikash v.
State (NCT of Delhi) (supra) and Suraj Kumar v. State (NCT of Delhi)
(supra) . Both decisions reiterate, that the testimony of a child victim may
form the basis of conviction only when it inspires confidence and remains free
from material infirmities. There can be no disagreement with the said
principle. Its application however, necessarily depends upon the evidentiary
circumstances of each case.
58. In Vikash v. State (NCT of Delhi) (supra) , the prosecutrix had
furnished materially different versions in her statement under Section 161
CrPC, her statement under Section 164 CrPC and her deposition before the
concerned learned Trial Court. In her initial version, she stated that she had
voluntarily accompanied the accused to Ambala, had established physical
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relations with him with her consent and had married him at a temple. Her
subsequent versions materially departed from that account. The alleged
factory where the incident was stated to have occurred was also neither
properly identified nor proved. No site plan was prepared at her instance and
other material corroborative evidence was also absent.
59. The present case stands on a different footing. The child victim in the
present case has not furnished any earlier version exculpating the appellant.
He remained consistent regarding the identity of the appellant, the nature and
repetition of the acts and the threat extended to him. The variations relied
upon by the appellant concern the precise date, the exact spot within the
stairway area and the sequence in which the family members came to know
of the incidents. They do not in any way constitute, mutually destructive
versions of the occurrence.
60. In Suraj Kumar v. State (NCT of Delhi) (supra) , there were material
contradictions between the child victim and her mother regarding the number
of alleged incidents, the manner in which the appellant had gained access to
the premises, and the place from where the child was subsequently found. A
material part of the account furnished under Section 164 CrPC was also absent
from the substantive testimony before the learned Trial Court. The Court
further noticed the absence of medical evidence corroborating the alleged
incident. Significantly, the site plan in that case had been prepared at the
instance of the child victim and no infirmity concerning its preparation formed
the basis of the decision.
61. The circumstances which created reasonable doubt in Vikash v. State
(NCT of Delhi) (supra) and Suraj Kumar v. State (NCT of Delhi) (supra)
are therefore, absent in the present case. Here, the child’s account remains
consistent on the foundational facts and the medical evidence, and does not
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contradict his version. Therefore, the reliance placed upon the aforesaid
decisions does not advance the case of the appellant.
Presumption Under Section 29 of the POCSO Act
62. Section 29 of the POCSO Act does not dispense with the obligation of
the prosecution to first establish the foundational facts constituting the
offence. In the present case, those facts stand proved through the school record
establishing the age of the child, his direct and reliable testimony identifying
the appellant, describing penile penetration on two occasions and the threat
extended to prevent disclosure. The evidence of PW-3 and PW-4 corroborates
the subsequent disclosure and reporting of the matter, while the medical
evidence, even though does not categorically state that the occurrence
happened, does not contradict the possibility of it happening. This Court finds
no reason to disbelieve the testimony of PW-8A. The medical evidence when
coupled with the consistent testimony of the victim, put forth no ground that
would make this Court adopt a course of action that would differ from the one
adopted by the concerned learned Trial Court. The prosecution has, therefore,
discharged its initial burden, and the presumption under Section 29 of the
POCSO Act therefore becomes operative.
63. Now the appellant has neither elicited any material during cross-
examination nor produced any defence evidence sufficient to rebut the said
presumption. The child’s testimony establishes that the appellant inserted his
penis into the child’s anus on two occasions. The offence was, therefore,
committed more than once and attracts Section 5(l) of the POCSO Act. Since
the child was below twelve years of age, Section 5(m) is also attracted. The
acts are punishable under Section 6 of the POCSO Act and also satisfy the
ingredients of Section 377 IPC as it then stood. The threat to kill the child’s
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mother if he disclosed the incidents also establishes criminal intimidation
punishable under Section 506 IPC.
64. In view of the foregoing discussion, this Court is of the opinion that the
discrepancies pointed out on behalf of the appellant do not create a
reasonable doubt in the case of the prosecution regarding the commission of
the alleged offences. The concerned learned Trial Court therefore committed
no error in convicting the appellant for the offences punishable under Sections
377 and 506 of IPC and Section 6 of the POCSO Act. The challenge to the
conviction is therefore in the opinion of this Court, not sustainable, and is
thereby liable to be dismissed.
Quantum of Sentence
65. The incidents in the present case occurred in February 2019. At the
relevant time, Section 6 of the POCSO Act prescribed a rigorous
imprisonment (RI) for a term of not less than ten (10) years, which could
extend to imprisonment for life, along with fine. Subsequently, Section 6 was
substituted by Section 5 of the Protection of Children from Sexual Offences
(Amendment) Act, 2019 (Act 25 of 2019) , with effect from 16.08.2019, which
enhanced the minimum sentence to a period of twenty (20) years. It further
defined imprisonment for life as imprisonment for the remainder of the
offender’s natural life and introduced, the punishment of death for this
offence.
66. The aforesaid detail becomes relevant in the present case for the limited
purpose of deciding as to whether the unamended provision shall govern the
sentence in the present case or the amended one would.
67. In State of U.P. v. Sonu Kushwaha, (2023) 7 SCC 475 , the Supreme
Court expressly held that the enhancement of the minimum sentence to a
period of twenty (20) years with effect from 16.08.2019 would not apply to
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an incident which had occurred prior to the said amendment, and since the
said amendment came into force after the time of the incidents in the present
case, which stand proved after the discussion above, the unamended Section
6 of the POCSO Act would be the provision that would govern this appeal
and the quantum of sentence in it. The relevant portion of the aforesaid
judgment depicting the same is as under:
“ 11. Section 6, as applicable before its substitution
on 16-8-2019, read thus:
“ 6. Punishment for aggravated
penetrative sexual assault .— Whoever,
commits aggravated penetrative sexual
assault, shall be punished with rigorous
imprisonment for a term which shall not
be less than ten years but which may
extend to imprisonment for life and shall
also be liable to fine.”
On the date of the commission of the offence,
rigorous imprisonment for ten years was the
minimum sentence prescribed for the offence of
aggravated penetrative sexual assault. From 16-
8-2019, the minimum sentence has been
enhanced to twenty years. However, the
amended provision will not apply to this case as
the incident has taken place prior to 16-8-2019. ”
(Emphasis supplied)
68. Now the sentence of rigorous imprisonment (RI) for a period of twenty-
five (25) years awarded by the concerned learned Trial Court falls within the
range prescribed under the unamended provision. But the quantum of
sentence however, requires consideration on the touchstone of
proportionality. The appellant was approximately twenty-two (22) years and
five (5) months old at the time of the incidents, had no previous involvement
in any similar offence and has remained in custody since 06.03.2019. At the
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same time, the child victim was only about eight (8) years old, the penetrative
sexual assault was committed on two occasions and the appellant had
threatened to kill the child’s mother to prevent disclosure.
69. Having regard to the aggravating and mitigating circumstances noted
above, this Court is of the considered view that rigorous imprisonment (RI)
for a period of ten (10) years would adequately meet the ends of justice in the
present case. The said sentence falls within the range prescribed under the
unamended Section 6 of the POCSO Act and does not amount to a
retrospective application of the amended minimum punishment. The order on
sentence dated 06.03.2024, therefore calls for modification to this limited
extent.
CONCLUSION
70. In view of the foregoing discussion, the judgment of conviction dated
30.11.2023 passed by the learned Additional Sessions Judge, Fast Track
Special Court (POCSO), South-East District, Saket Courts, New Delhi, in
Sessions Case No. 141/2019 , arising out of FIR No. 88/2019 , registered at
Police Station Kotla Mubarakpur, District South-East, Delhi, is hereby
affirmed.
71. The order on sentence dated 06.03.2024 however, is modified to the
limited extent, that the sentence of rigorous imprisonment (RI) for a period of
twenty-five (25) years imposed upon the appellant for the offence punishable
under Section 6 of the POCSO Act stands reduced to rigorous imprisonment
(RI) for a period of ten (10) years. The fine of ₹10,000/- imposed for the said
offence and the sentence of simple imprisonment (SI) for a period of thirty
(30) days imposed, in case of default in payment of the same, shall remain
unchanged.
Signature Not Verified
Signed By:BHARTI
Signing Date:06.11.2026
18:22:41
CRL.A. 699/2024 Page 33 of 34

72. The sentence of simple imprisonment (SI) for a period of eighteen (18)
months with a fine of ₹5,000/- imposed for the offence punishable under
Section 506 of IPC and sentence of simple imprisonment (SI) for a period of
fifteen (15) days imposed in case of default in payment of the same, shall also
remain unchanged. Both the substantive sentences shall run concurrently. The
direction that no separate sentence be awarded under Section 377 IPC in view
of Section 42 of the POCSO Act shall also remain undisturbed.
73. The award of compensation of ₹7,50,000/- to the child victim and the
directions concerning its disbursement shall also remain unchanged.
74. The appellant shall be entitled to the benefit of set-off under Section
428 CrPC for the period of detention already undergone by him.
75. Accordingly, the present appeal is partly allowed in the aforesaid terms
and conditions, and is thereby disposed of.
76. The pending application also stands disposed of.
77. Interim order(s), if any, also stand(s) vacated.
78. A copy of this judgment be sent to the concerned learned Trial Court
as well as the concerned Jail Superintendent for information and necessary
compliance.
79. This judgment be uploaded on the website forthwith .
MADHU JAIN
(JUDGE)
NOVEMBER 6, 2026/PG
Signature Not Verified
Signed By:BHARTI
Signing Date:06.11.2026
18:22:41
CRL.A. 699/2024 Page 34 of 34