Anil vs State

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 21.07.2026
Judgment pronounced on: 24.07.2026

+ CRL.A. 119/2017
ANIL .....Appellant
Through: Mr. Azhar Qayam, Mr. Narender
Kumar, Mr. Shahmuddin Zehri, Mr.
Zubair Khan and Ms. Priyanka Singh,
Advocates

versus

STATE .....Respondent
Through: Ms. Manjeet Arya, APP for State with
SI Lal Chand
Mr. Abhimanyu Singh, Advocate
( Amicus Curiae) for Victim

CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374(2) of the
Code of Criminal Procedure, 1973 (the Cr.P.C.), the sole
accused in Sessions Case No. 236/2014 on the file of the
Additional Sessions Judge-01, North Rohini, New Delhi, assails
the judgement dated 05.05.2016 and order on sentence dated
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11.05.2016, as per which he has been convicted and sentenced
for the offences punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (the PoCSO Act) and
Section 376(2)(i) of the Indian Penal Code, 1872 (the IPC).
2. The prosecution case is that around 01:00 P.M.-
01:30 P.M. on 30.10.2014, at E-315, Shahbad Dairy, Delhi, the
accused committed aggravated penetrative sexual assault on
PW1, a minor girl aged 3 years. Hence, as per the
chargesheet/final report, the accused is alleged to have
committed the offences punishable under Sections 376 IPC and
4 of the PoCSO Act.
3. On the basis of Ext. PW2/A FIS/FIR of PW2,
given on 30.10.2014, Crime no. 1257/2014, Shahbad Dairy
Police Station, i.e., Ext. PW2/B FIR was registered by PW10
Assistant Sub Inspector. PW12, Sub Inspector, conducted
investigation into the crime and on completion of the same, filed
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the chargesheet/final report alleging commission of the offences
punishable under the aforementioned Sections.
4. When the accused was produced before the trial
court, all the copies of the prosecution records were furnished to
him, as contemplated under Section 207 Cr.P.C. After hearing
both sides, the trial court, vide order dated 09.02.2015, framed a
Charge under Section 6 of the PoCSO Act against the accused.
Thereafter, the trial court amended the charge, and vide order
dated 02.05.2016, framed a Charge under Sections 6 of the
PoCSO Act and 376(2)(i) IPC. The Charge was read over and
explained to the accused, to which he pleaded not guilty.
5. On behalf of the prosecution, PWs 1 to 12 were
examined and Ext. PW2/A-E, Ext. PW3/A, Ext. PW4/A, Ext.
PW6/A-B, Ext. PW7/A, Ext. PW8/A-B, Ext.PW9/A-B, Ext.
PW10/A-B, Ext. PW/12/A, Ext. PW/12/C, and Ext. F-1 were
marked in support of the case.
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6. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C.
regarding the incriminating circumstances appearing against him
in the evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. The accused
submitted that he has been falsely implicated at the behest of
PW1’s father due to a money dispute. The accused also
submitted that on the date of the incident, he was “ heavily drunk
to the level of unconsciousness ”.
7. After questioning the accused under Section.
313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was
mandatory. In the case on hand, no hearing as contemplated
under Section 232 Cr.P.C. is seen done by the trial court.
However, non-compliance of the said provision does not, ipso
facto vitiate the proceedings, unless omission to comply with the
same is shown to have resulted in serious and substantial
prejudice to the accused (See Moidu K. vs. State of Kerala,
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2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888 ). Here, the
accused has no case that non-compliance of Section 232 Cr.P.C.
has caused any prejudice to him.
8. No oral or documentary evidence was adduced by
the accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 05.05.2016 held the accused
guilty of the offences punishable under Sections 6 of the PoCSO
Act and 376(2)(i) IPC. Vide order on sentence dated 11.05.2016,
sentenced him to undergo rigorous imprisonment for a period of
20 years and to fine of ₹5,000/-, and in default of payment of
fine, to simple imprisonment for a period of 15 days for the
offence punishable under Section 6 of the PoCSO Act. No
separate sentence has been awarded for the offence punishable
under Section 376(2)(i) IPC.
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10. The learned counsel for the appellant/accused
submitted that the impugned judgment is contrary to the facts
and circumstances of the case, is bad in law as the trial court has
failed to appreciate the materials on record and is, therefore,
liable to be set aside. It was submitted that no case for
penetration is made out and thus the conviction under Section 6
of the PoCSO Act is liable to be set aside.
11. Per Contra , it was submitted by the learned
Additional Public Prosecutor that there is no infirmity in the
judgment of the trial court 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
judgement warranting an interference by this Court.
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14. I will briefly refer to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
PW2/A, the FIS/FIR of PW2, the mother of the minor victim,
recorded on 30.10.2014, reads thus: “ On 30.10.14 at around
1:00 to 1:30 PM during the day, my daughter Ankita (PW1)
came to me crying and told me, “Mummy, when I was playing
outside, Anil uncle (the accused) called me and took me along
with him. He pulled down my pajami (pants) , and opened his
pants. Then he lay on top of me and began rubbing his private
parts against my private parts, which soiled my pajami.” ( अिनल
अंकल मुझे बुलाकर ले गया और मेरी पाजामी नीचे सरका दी और
अपनी पै खोल ली िफर मेरे ऊपर लेट गया और अपने शू-शू से मेरी
) . Ankita (PW1)
शू-शू पर घसने लगा िजससे मेरी पाजामी गंदी हो गई
then started crying. Taking my daughter Ankita along, I went to
Anil’s slum dwelling ( ) and asked him what he had done to
झु ी
my daughter (PW1) . He fell at my feet, began asking for
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forgiveness, and said, “I made a mistake.” My daughter pointed
at Anil and told me, “Mummy, it’s him, he lay on top of me,
made my pyjamas dirty, and was rubbing against me.” ( मेरी बेटी
ने अिनल को देखकर इशारा करके बतलाया िक म ी यही है इसी ने
) When I
मेरे ऊपर लेट कर मेरी पाजामी गंदी की थी और घस रहा था
tried to slap Anil, he fled from the spot. ”
14.1. PW2, in her 164 statement marked as Ext. PW2/E
recorded on 31.10.2014, reads thus: “ Yesterday, at around 1:30
PM, a boy named Anil (the accused) took my daughter Ankita
(PW1) from the street to his house and forcibly established
physical relations with her. (Anil नाम का लड़का मेरी बेटी Ankita
को गली म से उठा कर अपने घर ले गया और उसके साथ जबरद ी
) When my daughter told me, I went to
शारी रक संबंध बनाए।
confront him. He fell at my feet and said, “Bhabhi ji, I made a
mistake, please forgive me.” When I tried to beat him, he ran
away from there .”
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15. PW1, the minor victim when examined before the
trial court, deposed that on the day of the incident, she was playing
when the accused took her to his house. He gave her something to
eat. He then made her lie down. He touched his penis on her
urinary part and he made her pajami (pants) dirty. She also
deposed that the accused had beaten her. PW1, in her cross-
examination, admitted that the accused was her neighbour and
previously known to her. She admitted that a quarrel took place
between her father and the accused. However, PW1 was unable to
explain whether the quarrel had taken place on the date of the
incident or before.
16. PW2, the mother of PW1, examined before the
trial court, reiterated her version in Ext. PW2/A FIS/FIR and Ext.
PW2/E Section 164 Statement. She deposed that on 30.10.2014 at
about 01:00-1:30 P.M., her daughter (PW1) was playing in the
gali /street outside. After some time, her daughter (PW1) came
back weeping and told her that, the accused had taken her to his
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house, made her lie on the cot, slid her pajami down and rubbed
his penis on her urinary part after which the pajami became dirty.
She then took her daughter (PW1) to the house of the accused. The
accused admitted his guilt and started to apologize for his act. She
tried to slap him, but he managed to escape. She then called her
husband, and after narrating the incident to him, they searched for
the accused. The accused could not be found, after which she
reported the matter to the police.
16.1. PW2, in her cross-examination, stood by her
version in Ext. PW2/A FIS/FIR, Ext. PW2/E Section 164
Statement and her examination-in-chief. She denied that she had a
dispute with the accused over a drainage system. She denied that
due to the said dispute, she had falsely implicated the accused in
the present case.
17. Section 6 of the PoCSO Act prescribes
punishment for aggravated penetrative sexual assault, while
Section 376(2)(i) IPC deals with aggravated forms of rape. To
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bring home an offence punishable under the aforesaid sections, the
prosecution must establish (i) that the victim is a child; (ii) that
there was penetration, however slight; and (iii) that the act falls
within any of the aggravated categories, inter alia , where the
perpetrator is a relative or a person in a position of trust or
authority or when the child is under 16 years of age (under the
IPC)/12 years of age (under the PoCSO Act).
18. In the case on hand, the age of PW1, i.e., 3 years
old is undisputed. Thus, the offence falls under the aggravated
category. On a combined reading of Ext. PW2/A FIS/FIR, Ext.
PW2/E Section 164 Statement, and in the respective testimonies of
PW1 and PW2, it is consistently established that the accused
undressed PW1 and himself and then rubbed his penis against the
urinary part of PW1. The question is whether the aforesaid act
would constitute penetrative sexual assault as contemplated under
Section 3 PoCSO Act. Section 3 PoCSO Act reads thus:-
“A person is said to commit “penetrative sexual assault” if—
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(a) he penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a child or makes the child to do so with him or
any other person; or
(b) he inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of the child
or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to
cause penetration into the vagina, urethra, anus or any part of
body of the child or makes the child to do so with him or any
other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the
child or makes the child to do so to such person or any other
person”

19. The rubbing of the penis of the accused against
the private part of PW1 does not apparently come within clauses
(a) to (d) of Section 3 of the Act. Therefore, the case of
penetrative sexual assault under Section 3 or aggravated
penetrative sexual assault as contemplated under Section 5
PoCSO Act cannot be held to have been made out from the
materials available on record.
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20. When this aspect was pointed out to the learned
Additional Public Prosecutor, the attention of this Court was
drawn to Ext F-1 FSL Report. The conclusion in Ext. F-1 FSL
Report reads thus:-
“ DNA profile generated from the source of exhibit ‘1h-1’
(vaginal microslide), exhibit ‘lh-2’(vaginal cotton wool swab),
exhibit ‘li’ (cervical mucus collection), exhibit ‘lo-2’ (pyjami of
victim), exhibit ‘lo-3’ (underwear of victim) ‚exhibit ‘2c’ (semen
sample of accused and exhibit ‘2e’ (Underwear of accused) is
matching with the DNA profile generated from the source of
exhibit ‘2f’ (blood sample of accused) and ‘2g’ (blood swab of
accused).”

21. In the FIS/FIR; the 164 statement and the
testimony, the witnesses have a consistent case of ejaculation by
the accused. From a reading of all the materials available on
record, it appears that the accused had not merely touched but
rather rubbed his private part against the private part of the
victim. The offence thus committed passes the threshold of
sexual assault as contemplated under Section 7 of the PoCSO
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Act, but falls short of the threshold of penetrative sexual assault
as contemplated under Section 3 PoCSO Act.
22. In Suo Moto Writ Petition (Criminal) No.
1/2025 dated 10.02.2026 before the Hon’ble Supreme Court, the
accused persons took the minor victim with them as a pillion
rider on their motorcycle after assuring her mother that they
would drop the victim at her residence. But, the accused persons
took her near a culvert and dragged her towards it. There, they
grabbed her breasts, and broke the string of her pyjama. When
the victim started to scream, two passersby came to her rescue.
The Special Judge (POCSO), Kasganj issued summons to the
accused for the offences punishable under Section 376 IPC read
with Section 18 of the PoCSO Act. The High Court revised the
same to be a Charge under Section 354B IPC and Sections 9 and
10 of the PoCSO Act. The Apex Court, setting aside the order of
the High Court, held that the act of the accused persons, prima
facie, made out a case of attempt to commit rape. The dictum in
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State of Madhya Pradesh v. Mahendra @ Golu (2022) 12
SCC 442 was referred to and it was reiterated that there is a
distinction between “preparation” and “attempt” to commit an
offence and it all depends on the statutory edict coupled with the
nature of evidence produced in a case. The stage of
“preparation” consists of deliberation, devising or arranging the
means or measures, which would be necessary for the
commission of the offence. An “attempt” to commit the offence,
starts immediately after the completion of preparation.
“Attempt” is the execution of mens rea after preparation.
“Attempt” starts where “preparation” comes to an end, though it
falls short of actual commission of the crime.
23. In the case on hand, the accused after undressing
himself and the victim, proceeded to rub his penis against the
private part of PW1. Therefore, he reached the stage much after
preparation and his intention is clear from the overt act
committed. He did enter the stage of attempting penetrative
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sexual assault. In the testimony of PW1 to which I have already
referred to, she does not have a case of penetration. According to
her, the accused “ apni susu wali jagah meri susu wali jagah par
lagai aur meri pajami gandi kar di..... ”. It is true that this act
does not come under any of the clauses of Section 3 PoCSO Act.
But it certainly demonstrates an attempt to commit penetrative
sexual assault.
24. PW1 was below 12 years at the time of the
incident. Therefore, the offence that is made out is one
punishable under Section 18 PoCSO Act read with 6 PoCSO
Act, that is, attempt to commit aggravated penetrative sexual
assault on a child who was below 12 years. The offence under
Section 18 of the Act is liable to be punishable with
imprisonment of any description provided for the offence, for a
term which may extend to one half of the imprisonment for life
or, as the case may be, one-half of the longest term of
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imprisonment provided for that offence or with fine or with
both.
25. In case on hand, the trial court found the accused
guilty of the offence under Section 6 PoCSO Act and thus
convicted him to rigorous imprisonment for twenty years. For
the reasons stated herein above, the offence of penetrative sexual
assault has not been made out. An attempt to commit penetrative
sexual assault as contemplated under Section 18 read with 6
PoCSO Act is made out. In terms of Section 57 IPC, the
maximum sentence that can be awarded for the aforesaid offence
is, therefore, ten years. The accused is seen to have been old
enough to be the father of PW1. In such circumstances, no
leniency is called for.
26. In the result, the appeal is partly allowed. The
conviction and sentence of the appellant/accused is modified to
the offence punishable under Section 18 read with Section 6
POCSO Act. The sentence awarded by the trial court is
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accordingly modified to rigorous imprisonment for a period of
ten years.
27. Application(s), if any, pending, shall stand closed.

CHANDRASEKHARAN SUDHA
(JUDGE)


JULY 24, 2026/kd


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