Imran vs The State (Govt. Of Nct Of Delhi )
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of reserving order: 15 September, 2026
th
Date of decision: 30 October, 2026
# CNR No. DLHC010533542022
+ CRL.A. 133/2022
IMRAN .....Appellant
Through: Mr. Nipun Katyal, Adv.
versus
THE STATE (GOVT. OF NCT OF DELHI ) .....Respondent
Through: Mr. Raj Kumar, APP for the State.
Mr. Archit Upadhyay (DHCLSC) &
Mr. Arpit Tripathi, Advs for
prosecutrix.
CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
VIMAL KUMAR YADAV, J.
1. The present appeal under Section 374 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), assails the judgment
and order on sentence dated 17.11.2021 and 18.01.2022 respectively, passed
by the learned Additional Sessions Judge, Fast Track Special Court
(POCSO), South District, Saket Courts, New Delhi in Sessions Case No.
437/2017 arising out of FIR No. 422/2017 registered at Police Station
Mehrauli, whereby the appellant was convicted for offences punishable
under Section 4 of the Protection of Children from Sexual Offences Act,
2012 (“POCSO Act”) and Sections 366, 376(2) and 506 Part-II of the Indian
Penal Code, 1860 (“IPC”).
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2. Through the order on sentence dated 18.01.2022, the appellant was
sentenced to undergo Rigorous Imprisonment (RI) for 15 years under
Section 376(2) IPC, along with fine of ₹10,000/-, in default of payment of
fine to further undergo Simple Imprisonment (SI) for six months. For the
offence under Section 366 IPC, he was sentenced to RI for seven years with
fine of ₹5,000/- and in default thereof SI for three months. For the offence
under Section 506 (Part-II) IPC, he was sentenced to RI for two years and
six months with fine of ₹5,000/- and in default thereof SI for three months.
The substantive sentences were directed to run concurrently. The learned
Trial Court also directed payment of compensation of ₹4,00,000/- to the
victim, to be contributed equally by the appellant and the DLSA.
3. The case of the prosecution, in substance, is that the prosecutrix, who,
according to the prosecution, was a minor at the relevant time, had gone to
the shop of the appellant on 20.06.2017, who was working as a tailor, for
collecting her stitched suit. It is alleged that the appellant, thereafter, took
the prosecutrix with him on a two-wheeler on the pretext of
changing/showing her the suit at his factory situated at Maidangarhi area.
Instead, he took the prosecutrix to the jungle of Maidangarhi area, to an
isolated place near a Kikkar tree, and committed sexual assault upon her.
4. Thereafter, the appellant received a telephone call from one
Parshuram, stated to be a security guard, informing him that the parents of
the prosecutrix were searching for her. The prosecution alleges that the
appellant thereafter brought the prosecutrix back near her residence and
threatened her against disclosing the incident. The prosecutrix did not
immediately disclose the alleged incident to her parents. She subsequently
disclosed it to her parents on 27.06.2017, following which the matter was
reported to the police and the FIR came to be registered on 27.06.2017 under
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Sections 376, 354 and 506 IPC and Sections 4 and 8 of the POCSO Act.
After investigation, the charge-sheet was filed and charges were framed on
03.11.2017 under Sections 323, 354, 363, 366, 376(2) and 506 IPC, Section
4 read with Section 3 of the POCSO Act and Section 8 read with Section 7
of the POCSO Act, to which the appellant pleaded not guilty and claimed
trial.
5. The prosecution, to substantiate its case, examined 13 witnesses. The
victim was examined as PW-1. Her mother and father were examined as
PW-4 and PW-5 respectively. PW-6 Parshuram was examined in relation to
the alleged telephone communication. PW-7 and PW-12 were the respective
nodal officers concerning the telephone records. PW-8 was examined
regarding the age of the victim. PW-11 Dr. Parul Jaiswal proved/identified
the medical record of the victim, while PW-13 was the Investigating Officer.
6. The appellant, in his statement under Section 313 Cr.P.C., denied the
incriminating circumstances and stated that he had been falsely implicated.
He also disputed the mobile number attributed to him and stated that his
identity document had been misused. The defence examined one witness,
namely, HC Shokat DW-1. However, the appellant was convicted and
sentenced as detailed above.
7. Learned counsel for the appellant has assailed the impugned judgment
principally on the ground that the conviction rests substantially upon the
testimony of the victim, which suffers from material contradictions and is
not of such sterling quality as would sustain a conviction without
independent corroboration. Learned counsel has further relied upon the
discrepancy concerning the time and movement from the appellant’s shop to
the alleged place of occurrence. The victim stated that the jungle was
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approximately three kilometres away and that the appellant reached there in
about five minutes while driving at high speed.
8. It has been further argued that the victim’s version regarding the date
of occurrence is inconsistent. While the complaint and testimony before the
Trial Court refer to 20.06.2017, the statement under Section 164 Cr.P.C.
records the date as 20.05.2017.
9. Another submission concerns PW-6 Parshuram. According to the
prosecution, it was his telephone call which caused the appellant to bring the
victim back. It is submitted that the mere existence of such a call does not
establish that the prosecutrix was accompanying the appellant at that
particular time and that PW-6 in any event did not support the version of the
prosecution.
10. It is further pointed out that no CCTV footage from the relevant
locations was collected or produced and that there is no independent witness
who had seen the appellant leaving his shop with the victim. It has not,
however, been pointed out that any CCTV cameras were installed at those
locations.
11. The appellant has further argued that the medical evidence does not
establish the time or manner of the alleged sexual assault and that there were
no corresponding injuries establishing the prosecution version.
12. The appellant has further argued that the clothes allegedly worn by the
victim were not shown to have been damaged and that the investigating
officer did not seize the suit which, according to the prosecution, was the
reason for the victim's visit to the Appellant’s shop.
13. Learned counsel has further challenged the application of the
presumption under Section 29 of the POCSO Act, contending that the
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prosecution was first required to establish the foundational facts before the
statutory presumption could operate.
14. Further, learned counsel for the appellant assailed the finding that the
prosecutrix was a minor. In the written submissions filed on behalf of the
appellant (para 4.8), it is urged that the prosecution has relied only upon the
admission registration form (Ex. PW8/A), the admission register entry (Ex.
PW8/B) and the certificate of the principal (Ex. PW8/C), PW-8 having
stated that, as per the school record, the date of birth of the prosecutrix is
01.12.2001, that no document of the kind mentioned in Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”) has
been produced and that no ossification test or other medical age
determination test was conducted. Reliance was placed on State v. Tofil
Ahmad @ Sonu Singh , 2024 SCC OnLine Del 5403, Satpal Singh v. State
of Haryana , (2010) 8 SCC 714 and Karan Kumar v. State & Anr. , 2025
SCC OnLine Del 4239.
15. Finally, without prejudice to the challenge to conviction, learned
counsel has submitted that the sentence of 15 years imposed upon the
appellant is excessive and that there were no reasons recorded demonstrating
why a sentence substantially above the statutory minimum was warranted.
Learned counsel also submitted that the appellant had, on the date of the
submissions, already undergone 7 years, six months and 9 days and has
made a humanitarian submission regarding his family circumstances.
16. Per contra, learned APP for the State has stood by the judgment of the
learned Trial Court and submitted that the testimony of the prosecutrix is
consistent on the core allegation of sexual assault and that minor
discrepancies concerning dates or peripheral details cannot demolish an
otherwise credible prosecution case. It is submitted that the prosecutrix has
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explained the delay in registration of the FIR, as she could not immediately
disclose the incident because of fear and apprehension. It is argued that the
evidence of the prosecutrix cannot be discarded merely because an
independent witness did not fully support the prosecution. Learned APP has
further submitted that the hostility of PW-6 does not demolish the
prosecution case because the electronic evidence and the testimony of the
prosecutrix independently establish the relevant circumstances.
17. Having heard the learned counsel for both the parties and having
perused the evidence led before the learned Trial Court, the impugned
judgment and the material placed on record, the question which arises for
consideration is whether the prosecution has succeeded in proving, beyond
reasonable doubt, the essential ingredients of the offences for which the
appellant has been convicted.
18. Since the conviction rests substantially upon the testimony of the
prosecutrix, it would be appropriate to first examine the ingredients of the
offences and thereafter to appreciate the testimony of PW-1 in the light of
those ingredients. Such an exercise is particularly necessary in the present
case because the principal challenge of the Appellant is that the testimony of
PW-1 contains discrepancies which, according to him, render the
prosecution case doubtful.
19. Before proceeding to appreciate the evidence, it would be appropriate
to reiterate that in a case of sexual assault, the testimony of the prosecutrix
occupies a position of considerable significance. There is no rule of law
requiring the testimony of a prosecutrix to be corroborated in every case by
independent evidence. If her testimony is found to be reliable, cogent and
inspires confidence, a conviction can rest upon her testimony alone. At the
same time, the court is required to examine such testimony with due care and
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caution and determine whether the inconsistencies pointed out by the
defence are material or merely peripheral. The settled position is that minor
discrepancies or variations relating to dates, time or other collateral
particulars cannot, by themselves, discredit an otherwise trustworthy
account.
20. In the present case, the testimony of PW-1 has to be examined
keeping in view the nature of the occurrence alleged, the age of the
prosecutrix and the circumstances in which the incident is stated to have
taken place. The core of the prosecution case is that the prosecutrix had gone
to the appellant's shop for collecting her stitched suit, that the appellant took
her with him on the pretext of taking her to the factory for showing/changing
the suit, that she was instead taken to an isolated place in the Maidangarhi
jungle and that the appellant committed sexual assault upon her there. The
above testimony, when read as a whole, forms part of the same transaction
and presents a continuous narrative of connected circumstances.
21. The defence has placed considerable emphasis on the discrepancy
regarding the date of occurrence, that is, the reference to 20.06.2017 in the
complaint and 20.05.2017 in the statement under Section 164 Cr.P.C. This
discrepancy undoubtedly requires consideration. However, the mere
variation in the date, particularly where the occurrence itself and the identity
of the assailant remain consistently asserted, cannot automatically be
elevated to the status of a contradiction going to the root of the prosecution's
case. The Court has to examine whether the discrepancy affects the very
occurrence or merely reflects an error concerning a minor detail.
22. The statement under Section 164 Cr.P.C., recorded on 28.06.2017, is
required to be appreciated along with the testimony given before the Court
and the other circumstances proved during trial. A variation in the date does
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not, by itself, erase the substantive account of the prosecutrix if the essential
features of the occurrence remain intact. It is also noticed that the variation
was not put to PW-1 in her cross-examination so as to afford her an
opportunity to explain it. The defence has not demonstrated from the
material noticed in the present appeal that the discrepancy concerning the
month establishes the impossibility of the occurrence or places the appellant
elsewhere on the relevant date. The contention is, therefore, rejected.
23. The argument concerning the distance between the appellant's shop
and the jungle and the time allegedly taken to reach there also does not
persuade this Court to reject the prosecution case. The prosecutrix stated that
the distance was approximately three kilometres and that the appellant
reached the place in about five minutes while driving at a high speed. The
precise calculation of time based upon an estimated distance is not such a
circumstance upon which the entire prosecution case can be discarded. The
statement, viewed in its proper context, indicates that the appellant took her
away from the shop and proceeded towards an isolated place. A minor
variation in the estimated distance or time cannot be a ground to demolish
the prosecution case and this contention is also rejected.
24. Much emphasis has also been placed on the fact that PW-6 Parshuram
did not support the prosecution version in its entirety. However, the
testimony of a witness who does not support a particular part of the
prosecution case does not automatically render the testimony of the
prosecutrix unreliable. The evidence of each witness has to be assessed for
its own worth. The Court is required to determine whether the portion of the
prosecution case concerning the commission of the offence stands
established independently of the particular circumstance which PW-6 did not
support.
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25. The prosecution case cannot, therefore, be rejected merely because
PW-6 did not support the alleged telephone conversation in the manner
projected by the prosecution. The alleged telephone call was relied upon
principally as a circumstance explaining why and how the appellant brought
and dropped the prosecutrix near her residence. It is not the substantive
evidence of the sexual assault itself. The absence of support from PW-6 may
affect the weight to be attached to that particular circumstance, but it does
not, by itself, destroys the direct testimony concerning the occurrence.
26. Similarly, the absence of CCTV footage or an independent witness
who actually saw the appellant leaving his shop with the prosecutrix cannot
be treated as fatal in the facts of the present case. Sexual offences,
particularly those committed at isolated locations, are ordinarily not
witnessed by independent persons. The prosecution is required to prove its
case through the evidence available to it and is not required to manufacture
independent eyewitnesses to an occurrence which, by its very nature, may
take place in private.
27. The fact that CCTV footage was not collected from the relevant
locations may constitute an investigative deficiency. However, an omission
on the part of the investigating officer does not necessarily demolish
otherwise reliable substantive evidence.
28. The same principle applies to the submission that the suit allegedly
worn by the prosecutrix was not seized. The non-seizure of a particular
article may deprive the prosecution of one possible piece of corroborative
evidence, but it does not mean that the occurrence itself stands disproved.
The Court has to assess the substantive evidence which is available rather
than assume that every investigative omission necessarily creates a
reasonable doubt.
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29. The appellant has also relied upon the medical evidence and the
absence of corresponding injuries. The submission proceeds on the premise
that the sexual assault alleged by the prosecutrix stands disproved, or at least
uncorroborated, unless it is borne out by injuries. There is no such rule of
law. It is a settled position that the statement of the prosecutrix, if found to
be worthy of credence and reliable, requires no corroboration and the Court
may convict the accused on her sole testimony. In Vijay @ Chinee v. State
of M.P. , (2010) 8 SCC 191, the Supreme Court, after referring to State of
H.P. v. Raghubir Singh , (1993) 2 SCC 622, held that there is no legal
compulsion to look for any other evidence to corroborate the evidence of the
prosecutrix before recording a conviction. Medical evidence may lend
assurance to the version of the prosecutrix, but its absence, or the absence of
external injuries, is not by itself determinative where her ocular testimony is
otherwise found reliable. What the Court has to examine is whether the
medical evidence is inconsistent with the prosecution case, and not whether
it independently proves the occurrence.
30. In the present case, the medical evidence, therefore, has to be
appreciated for what it establishes and what it does not establish. It cannot be
used to introduce a requirement of physical injury which is not an essential
ingredient of the offence. Further, medical evidence cannot be independently
used as proof of the occurrence. Rather, it has to be seen whether the
medical evidence is consistent with the prosecution case or not. The MLC of
the prosecutrix (Ex. PW11/A), proved by PW-11 Dr. Parul Jaiswal, records
that a mucosal tear at 6 o'clock position (1 cm) without bleeding was noted
at the fourchette and introitus and a tear at 6 o'clock without bleeding was
noted at the hymen. The medical evidence is, thus, consistent with the
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version of the prosecutrix. No inconsistency has been demonstrated merely
by pointing out the absence of external injuries.
31. The learned Trial Court has held the prosecutrix to be a minor on the
strength of the school records and has convicted the appellant under Section
4 of the POCSO Act. The age of the prosecutrix is an ingredient of that
offence and also determines the footing on which the offences under the IPC
are to be examined. Although the point does not appear to have been agitated
before the learned Trial Court, it has been specifically taken in the written
submissions of the appellant, and in any event the burden of proving that the
prosecutrix was a child lay on the prosecution. Section 34(2) of the POCSO
Act, moreover, requires the Special Court, where a question arises whether a
person is a child or not, to determine it “after satisfying itself about the age
of such person” and to “record in writing its reasons for such determination”.
In P. Yuvaprakash v. State , (2024) 17 SCC 684, the Supreme Court held
that, in view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act
becomes relevant and applicable and that wherever the dispute with respect
to the age of a person arises in the context of her or him being a victim under
the POCSO Act, the Courts have to take recourse to the steps indicated in
Section 94 of the JJ Act. This Court has accordingly examined the question
afresh.
32. The criteria for determining the age of a child have been laid down in
Section 94 of the JJ Act. The relevant portion reads as under:
"94. Presumption and determination of age.
… (2) In case, the Committee or the Board has reasonable grounds for doubt
regarding whether the person brought before it is a child or not, the Committee or
the Board, as the case may be, shall undertake the process of age determination,
by seeking evidence by obtaining –
(i) the date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if available;
and in the absence thereof;
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(ii) the birth certificate given by a corporation or a municipal authority
or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the
Committee or the Board shall be completed within fifteen days from the date of
such order.
(3) The age recorded by the Committee or the Board to be the age of person
so brought before it shall, for the purpose of this Act, be deemed to be the true age
of that person."
33. The documents relied upon by the prosecution to prove the age of the
prosecutrix, namely the school admission form/application form for
admission (Ex. PW8/A), the admission register maintained by the school
authorities (Ex. PW8/B) and a certificate issued by the principal stating the
date of birth as maintained in their records (Ex. PW8/C), which according to
PW-8 record the date of birth of the prosecutrix as 01.12.2001, have
therefore to be tested against Section 94(2) of the JJ Act. The question is not
whether such an entry exists, but whether it is a document of the kind which
Section 94(2) places in the first or second category and, if it is not, what
follows from that.
34. Section 94(2) prescribes an order of preference. First in that order is
the date of birth certificate from the school or the matriculation or equivalent
certificate from the examination Board. Failing that, it is the birth certificate
given by a corporation, municipal authority or panchayat. Only in the
absence of both is the age to be determined by an ossification test or other
latest medical age determination test. In P. Yuvaprakash (supra), the
Supreme Court observed that the burden is always upon the prosecution to
establish what it alleges and held that a school transfer certificate and
extracts of the admission register are not what Section 94(2)(i) mandates. In
the present case no matriculation or equivalent certificate has been produced,
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no birth certificate issued by a corporation, municipal authority or panchayat
has been brought on record by the prosecution and, as is admitted, no
ossification test or other medical age determination test was conducted.
35. The only question which merits closer consideration is whether the
certificate of the principal (Ex. PW8/C) can be treated as “the date of birth
certificate from the school” within Section 94(2)(i). In the view of this
Court, it cannot, for the following reasons. The certificate does not record an
independent determination of the date of birth. It states the date of birth “as
maintained in their records”, that is to say, it reproduces the entry in the
admission register (Ex. PW8/B), which in turn was made on the basis of the
admission form (Ex. PW8/A). Its probative value can rise no higher than that
of the entry it reproduces. In Satpal Singh v. State of Haryana, (2010) 8
SCC 714, the Supreme Court, after citing several earlier decisions, held that
a document may be admissible under Section 35 of the Evidence Act, but
that admissibility is one thing and probative value another. The authenticity
of the entry depends on whose instruction or information it was recorded and
what his source of information was. An entry in a school register or
certificate therefore requires to be proved in accordance with law. In State
(Govt. of NCT of Delhi) v. Shailesh Kumar, 2019 SCC OnLine Del 8318, a
Division Bench of this Court held in the same terms that an entry of the date
of birth in the school admission register has evidentiary value only if there is
material available on the basis of which the age was so recorded. Further, it
referred the common view expressed by the Supreme Court and High Courts
that no probative value can be attached to such a record unless the parents,
or the person on whose information the entry was made, are examined, and
held that mere production of the school register would not suffice in the
absence of any material document on which the entry was based.
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36. Applying these principles, the entry of 01.12.2001 in Ex. PW8/B, and
the certificate Ex. PW8/C which merely repeats it, would carry weight only
if the prosecution had established the source of the information on which the
date of birth was recorded at the time of admission. The prosecution
examined PW-8, Sh. Vikas Kumar, a teacher of SDMC Primary School,
Rajpur Khurd, who produced the original application/registration form (Ex.
PW8/A), the admission register showing the entry at serial no. 3422 (Ex.
PW8/B) and the certificate of the principal (Ex. PW8/C), and stated that the
prosecutrix was admitted in Class 1 on 29.04.2010 and that “as per our
record” her date of birth is 01.12.2001. In his cross-examination, however,
PW-8 stated that he has been working in the school only since July, 2015,
i.e., more than five years after the admission, and that the principal who
signed Ex. PW8/C retired on 31.07.2019. PW-8 thus had no personal
knowledge of the admission. His statement does not disclose who furnished
the date of birth to the school, on what information or document it was
recorded, or whether any birth certificate or other document was produced at
the time of admission. Neither the person who made the entry nor the
principal who issued Ex. PW8/C was examined. The parents of the
prosecutrix do not fill this gap. PW-4 (the mother) did not state the date of
birth or the age of the prosecutrix in her examination-in-chief. In her cross-
examination she stated only that the prosecutrix was born at B.K. Hospital,
Faridabad and that she did not know whether a date of birth certificate had
been obtained. PW-5 (the father), who stated that he is illiterate, likewise did
not state the date of birth or the age of the prosecutrix. He stated that she was
born at B.K. Hospital, Faridabad and that “we had obtained the birth
certificate of our daughter from the Municipal Corporation”, but he did not
remember whether it was seized by the police. No birth certificate issued by
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the Municipal Corporation, and no hospital record of the birth, was produced
or proved by the prosecution, and no witness was asked to state the date of
birth stated therein. The record therefore leaves the entry of 01.12.2001
unconnected with any document or information said to have been furnished
by the parents. It shows, at the same time, that a document of the kind placed
higher in the order of preference in Section 94(2)(ii) of the JJ Act was in
existence but was not brought on record. In the absence of such material the
entry is of the kind which has been held to carry little or no probative value.
In Satpal Singh (supra), the Supreme Court, referring to Vishnu v. State of
Maharashtra , (2006) 1 SCC 283, noticed that very often parents furnish an
incorrect date of birth to the school authorities in order to secure admission
for their children and that the best evidence for determining the age of a
child is that of the parents only if it is supported by unimpeachable
documents. The Division Bench in Shailesh Kumar (supra) reiterated the
same position.
37. The omission to conduct an ossification test is not a lacuna which can
be held against the appellant. The age of the prosecutrix being an essential
ingredient of the offence under Section 4 of the POCSO Act, the burden of
proving it beyond reasonable doubt lay on the prosecution, whether or not
the accused had disputed it earlier. Where, as here, the school records are the
only material and they do not answer the description of Section 94(2)(i) or
(ii) in the sense explained above. Thus, it was incumbent on the prosecution
to establish through an ossification test that the prosecutrix was below 18
years of age. To the extent the learned Trial Court accepted the school
records without testing them against the hierarchy of Section 94(2) and
without examining the basis of the entry, it proceeded on an incorrect
footing.
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38. In State v. Tofil Ahmad, 2024 SCC OnLine Del 5403, the only
document available was the Shapath patra furnished at the time of
admission and recorded in the school admission and withdrawal register.
The persons who had furnished it could neither justify nor confirm the date
of birth and no ossification test was conducted. The Division Bench held that
there was no other document contemplated by Section 94 of J.J. Act and that
the prosecution had not established beyond reasonable doubt that the
survivor was below 18 years. Relying on Rajak Mohammad v. State of
Himachal Pradesh, (2018) 9 SCC 248, the Division Bench observes:
―7. While it is correct that the age determined on the basis of a
radiological examination may not an accurate determination and
sufficient margin either way has to be allowed, yet the totality of the
facts stated above read with the report of the radiological
examination leaves room for ample doubt with regard to the correct
age of the prosecutrix. The benefit of the aforesaid doubt, naturally,
must go in favour of the accused.
8. We will, therefore, have to hold that in the present case the
prosecution has not succeeded in proving that the prosecutrix was a
minor on the date of the alleged occurrence. If that is so, based on
the evidence on record, already referred to, we will further have to
hold that the possibility of the prosecutrix being a consenting party
cannot be altogether ruled out.‖
Further, in Karan Kumar v. State, 2025 SCC OnLine Del 4239, where
the only document was the school admission register and the entries in it
were not made on the basis of any proof of birth issued by any corporation
or a Municipal Authority etc. In such absence, and the stand taken by the
survivor in her statement under 164 Cr.P.C,it was incumbent upon the
prosecution to conduct an ossification test or any other latest medical age
determination. In these circumstances, it is evident that the prosecution had
failed to discharge its obligation to prove that the survivor was a child within
the meaning of Section 2(1)(d) of the POCSO Act.
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39. The prosecution has accordingly not proved, beyond reasonable
doubt, that the prosecutrix was below 18 years of age on 20.06.2017, and the
benefit of that doubt must go to the appellant. This is not a finding that the
prosecutrix was in fact an adult. She is treated as a major for the purposes of
this case solely because her minority has not been established in the manner
required by law.
40. In light of the aforesaid findings, the conviction of the appellant under
Section 4 of the POCSO Act cannot be sustained, the age of the prosecutrix
below 18 years not having been proved. The conviction of the appellant
under Section 4 of the POCSO Act is accordingly set aside. The offences for
which the appellant can now be held liable are those under Sections 376, 366
and 506 IPC.
41. The finding on age does not, however, affect the appellant's liability
under the IPC. The age of the prosecutrix is decisive where a case rests on
the footing that her consent, even if given, is immaterial. That is not the case
here. The case of the prosecution, as deposed by PW-1, is that the appellant
had sexual intercourse with her forcibly and without her consent after taking
her to an isolated place on a pretext and that she screamed for help. The
defence of the appellant is not that the prosecutrix consented but that he has
been falsely implicated. In Satpal Singh (supra), the Supreme Court held
that the issue of majority becomes irrelevant if the prosecution successfully
establishes that it was not a case of consent. Tofil Ahmad (supra) and Karan
Kumar (supra), on which the appellant relies, turned on the relationship
being found consensual or on the absence of proof of forcible penetrative
assault and are distinguishable on that ground.
42. For conviction under Section 376(2) IPC, the Court has to first
determine whether the offence of rape has been established and, thereafter,
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whether the facts established on record satisfy the particular aggravated
circumstance contemplated by the applicable clause of Section 376(2) IPC.
43. The foundational fact of the sexual act is sought to be established
principally through PW-1. Her testimony attributes the sexual assault
specifically to the appellant and places the occurrence at the isolated location
in the Maidangarhi area to which the appellant had taken her. In her
examination-in-chief, PW-1 deposed as under:
"On 20.06.2017, I had gone to the shop of Imran for taking my
stitched suit at about 7.00 PM. When I asked for my stitched 'suit,
Imran told me that I would have to go with him at his factory at
Maidan Garhi for trial whether suit was fitting me or not Thereafter,
he took me on his scooty for going to his factory at Maidan Garhi
but instead of going to his factory at Maidan Garhi, he took me to a
jungle towards Maidan Garihi side near a kikar tree. Imran had
taken me on his scooty towards jungle by driving at a high speed and
when I asked him to stop, he did not stop. In the jungle, Imran
removed all my wearing clothes and removed his own pant and
thereafter inserted his penis into my vagina forcibly without my
consent. I screamed for help but nobody was present there as it was
night time and dark."
44. The aforesaid testimony of the victim addresses the two essential
factual questions, first, whether the sexual act occurred and, second, whether
the appellant was the person who committed it.
45. The attempt of the defence to discredit the testimony of the
prosecutrix by referring to the date discrepancy, the distance and time taken
to reach the location, the absence of injuries, the absence of CCTV footage
and the failure of PW-6 to support the telephone-call circumstance does not
advance its case.
46. None of these circumstances, individually or cumulatively,
demonstrates that PW-1's account of the actual sexual assault is inherently
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impossible. At their highest, they concern corroborative or surrounding
circumstances. The central allegation against the appellant remains intact.
47. The law does not require the prosecutrix to demonstrate physical
resistance through injuries in order for her testimony concerning sexual
assault to be accepted. The evidentiary question is whether her testimony is
reliable and whether there is material on record which renders the
occurrence improbable.
48. The appellant's defence, as recorded under Section 313 Cr.P.C., was
one of complete denial and false implication. He disputed the mobile number
attributed to him and alleged misuse of his identity document. The defence
also examined HC Shokat (DW-1). However, a mere denial of the
incriminating circumstances does not constitute a rebuttal of the prosecution
evidence. The Court must examine whether the defence has brought on
record circumstances which render the prosecution version improbable or
establish a competing version on a preponderance of probabilities.
49. On an overall appreciation, the defence has not been able to
demonstrate any compelling reason for the prosecutrix to falsely implicate
the appellant in a case of this nature. No substantive material has been
pointed out to establish a motive for such false implication. The mere fact
that certain witnesses did not support every circumstance narrated by the
prosecution cannot, in the absence of a credible alternative explanation,
outweigh the direct testimony of the victim concerning the central
occurrence.
50. It is also necessary to distinguish between contradictions and
discrepancies. A contradiction which strikes at the identity of the accused,
the occurrence itself or the essential ingredients of the offence may create
reasonable doubt. On the other hand, variations concerning peripheral
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matters, such as an estimated distance, precise time or date, do not
necessarily have the same consequence. The Court must examine the
evidence as a whole rather than isolate individual sentences from the
deposition.
51. Applying the aforesaid principle to the present case, the discrepancies
relied upon by the appellant do not, individually or cumulatively, destroy the
central prosecution narrative. The prosecutrix consistently attributes the act
to the appellant and describes the circumstances in which she accompanied
him and was taken to the isolated location. The principal allegation of sexual
assault has not been displaced by the discrepancies relied upon by the
defence.
52. Having considered the objections raised by the appellant, this Court
finds that the testimony of PW-1, on the material facts, establishes the
occurrence and identifies the appellant as the perpetrator. The medical
evidence does not furnish any contradiction to that testimony and, on the
contrary, lends corroboration to it.
53. The next question is whether the conviction under Section 376(2) IPC
can be sustained. The charge framed on 03.11.2017, the impugned judgment
and the order on sentence refer only to Section 376(2) IPC, without
identifying the clause relied upon. The impugned judgment does not record
any independent reason for invoking Section 376(2) IPC beyond the finding
that the prosecutrix was a child and the order on sentence proceeds expressly
on the footing that the appellant committed the offence upon a minor then
aged about 15 years. On the case of the prosecution, the only clause which
could have been attracted is clause (i) of sub-section (2) of Section 376 IPC,
namely rape on a woman when she is under sixteen years of age, and that
clause depends entirely on the age of the prosecutrix, which has not been
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established. None of the other circumstances enumerated in Section 376(2)
IPC, as it stood on 20.06.2017, is alleged or established on the record. The
aggravated form of the offence under Section 376(2) IPC is, therefore, not
made out.
54. Since the aggravated form is not made out, the question is whether the
appellant is liable under the main provision. Section 376(1) IPC takes in
every ingredient of the offence of rape which the prosecution was required to
prove and is a minor offence to that under Section 376(2) IPC within the
meaning of Section 222(1) Cr.P.C. The foundational facts of the sexual act,
the absence of consent and the identity of the appellant stand established
through the testimony of PW-1 for the reasons recorded above. The
appellant has contested all these facts at the trial and in this appeal and no
prejudice is caused to him by the alteration, which this Court is competent to
make under Section 386(b) Cr.P.C. read with Section 222(1) Cr.P.C. The
conviction of the appellant under Section 376(2) IPC is accordingly set aside
and altered to a conviction under Section 376(1) IPC.
55. As regards Section 366 IPC, the prosecutrix deposed that the appellant
deceitfully took her away from his shop where she had gone for collecting
her stitched suit and transported her on the pretext of taking her to the
factory, and thereafter took her to an isolated location.
56. The essence of the offence of abduction is contained in Section 362
IPC, which reads as under:
"362. Abduction.— Whoever by force compels, or by any deceitful
means induces, any person to go from any place, is said to abduct
that person."
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57. The evidence of PW-1, when read as a whole, establishes the
circumstances in which she was deceitfully taken away from the immediate
vicinity of the shop towards the isolated place.
58. The fact that the prosecutrix herself accompanied the appellant does
not, by itself, negate the allegation that she was induced by deceitful means
to go from that place. The circumstances under which she accompanied him
are to be looked into. The version of the prosecutrix is that the appellant
deceitfully induced her to accompany him on the representation that he was
taking her for a purpose connected with the stitched suit. The subsequent
conduct and destination form part of the same transaction.
59. This Court therefore finds that the prosecution has established the
essential ingredients of Section 366 IPC and that the finding of the learned
Trial Court on this count does not call for interference. As the prosecutrix
has been treated as a major, no question of kidnapping from lawful
guardianship arises. The conviction rests on her abduction by deceitful
means, followed by the commission of rape upon her at the place to which
she was taken, which establishes the purpose contemplated by Section 366
IPC.
60. The conviction under Section 506 Part-II IPC also merits no
interference. The prosecutrix deposed in her examination-in-chief that after
the occurrence the appellant threatened her against disclosing the incident.
The conduct of the prosecutrix in not immediately disclosing the occurrence
to her parents has to be examined in this context. Fear of disclosure and
apprehension arising from a threat are circumstances which cannot be
assessed by applying an artificial standard of conduct to a young girl in the
position of the prosecutrix, who was residing with her parents.
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61. The delay in disclosure, therefore, cannot by itself be treated as proof
of falsity. The prosecutrix has explained the delay by referring to fear and
apprehension. In a case involving a young girl and an allegation of sexual
assault, such conduct cannot be considered inherently unnatural. The
subsequent disclosure to her parents and the eventual registration of the FIR
constitute circumstances which have to be considered while appreciating her
explanation.
62. For the reasons recorded hereinabove, this Court finds no perversity or
illegality in the conclusion reached by the learned Trial Court on the
occurrence. The discrepancies relied upon by the appellant are not of such a
nature as to discredit the prosecution case in its entirety. The failure of PW-6
to support one particular circumstance, the non-collection of CCTV footage
and the absence of particular articles of evidence may constitute
shortcomings in investigation, but they do not create a reasonable doubt
regarding the core prosecution case established through the testimony of the
prosecutrix and the other evidence on record.
63. The conviction of the appellant under Sections 366 and 506 Part-II
IPC is, accordingly, affirmed and the conviction under Section 376(2) IPC is
altered to one under Section 376(1) IPC for the reasons recorded above.
64. Coming to the question of sentence, the appellant has challenged the
sentence of 15 years' rigorous imprisonment imposed for the offence under
Section 376(2) IPC, principally on the ground that the Trial Court did not
furnish adequate reasons for imposing a sentence above the statutory
minimum. It is settled that sentencing requires consideration of both the
gravity of the offence and the circumstances of the offender.
65. In the present case, the offence involves the appellant who took
advantage of the circumstances in which the prosecutrix came into his
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contact, took her to an isolated place and subjected her to rape. The nature of
the offence and the circumstances in which it was committed are relevant
considerations while determining the appropriate sentence.
66. The fact that the appellant has undergone substantial incarceration
during the pendency of the appeal, and the humanitarian circumstances
urged on his behalf, have also been considered. However, such
circumstances cannot by themselves efface the gravity of the offence. They
are relevant to the choice of quantum within the range which the law allows.
67. The alteration of the conviction to Section 376(1) IPC has a direct
bearing on sentence. The sentence of 15 years was imposed under Section
376(2) IPC, which carries a minimum of ten years. Section 376(1) IPC, as it
stood on 20.06.2017, carried a minimum of seven years. The Criminal Law
(Amendment) Act, 2018, by Section 4(a), raised that minimum to ten years
and, by Section 1(2), is deemed to have come into force on 21.04.2018. That
Act is later in point of time than the offence and prescribes a heavier
minimum. In view of Article 20(1) of the Constitution of India, which bars a
penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence, it cannot be applied to the
appellant. The range applicable to him is ,therefore, rigorous imprisonment
of not less than seven years, which may extend to imprisonment for life.
Since the Appellant had actually undergone more than seven years of
imprisonment, a sentence limited to the period already undergone is within
the range which the law allows.
68. The principles relevant for assessing the quantum of punishment in
cases of rape upon a child was laid down by a Division Bench of this Court
in Khem Chand v. State of Delhi, 2008 SCC OnLine Del 1611, and were
referred to in Om Prakash v. State, 2018 SCC OnLine Del 10732:
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―• Criminal and the crime are both important for the purposes of
sentence.
• Manner of commission of the crime being with meticulous planning
or one on the spur of the moment;
• Violence, If any, accompanying the crime whether injuries suffered
were serious and required extensive treatment or have caused any
permanent damage to the child bearing capacity or otherwise;
• Whether the offender or accused was in a position of fiduciary trust
or exploited a social or family relationship;
• State of the victim, impact of the crime on the victim,
• The antecedents of the accused, his age, whether a first time
offender or repeat offender, possibility of recidivism.
• Social backwardness or offender being a poor, illiterate labourer
not found to be adequate reason by Courts.
• Passage of time since offence committed by itself considered
inadequate reasons for reprieve.
• Rape victim's marriage or rehabilitation may be considered as a
mitigating factor‖.
In Bachan Singh v. State of Punjab , (1980) 2 SCC 684, the
Constitution Bench, though dealing with capital punishment, emphasised
that the Court must have regard both to the crime and the criminal, which are
not to be considered in two watertight compartments and treated the age of
the accused and the probability that he can be reformed and will not commit
criminal acts of violence as relevant circumstances to be given great weight.
69. Applying these principles, the following circumstances weigh in
favour of the Appellant. He was about 30 years of age at the time of the
offence, as recorded in his MLC dated 01.07.2017. He has clean antecedents
and this is his first conviction. No other offence is attributed to him,
including during the periods when he was on bail and no proceeding under
Section 229A IPC has been initiated against him. The offence, as deposed by
PW-1, was a single occurrence. Her testimony does not allege the use of a
weapon or the infliction of grievous hurt, and the case is not one of fiduciary
trust or of repeated assault. As per the nominal roll dated 18.09.2026, the
Appellant has undergone 7 years, 6 months and 9 days of actual custody.
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The Appellant also relies on his family circumstances, namely, the illness
and surgery of his wife and the financial constraints in which the family was
placed. Poverty or family hardship is not by itself an adequate ground for
leniency, as noticed in Khem Chand (supra), but these circumstances, taken
with the others, are relevant to the probability of reformation and
rehabilitation, to which Bachan Singh (supra) requires the Court to have
regard.
70. The circumstances which weigh against the Appellant are the
following. The offence was committed by deceit, the prosecutrix being taken
on the pretext of trying her stitched suit to an isolated place in the evening,
where it was dark and no one was present. The Appellant also threatened the
prosecutrix after the occurrence, but that conduct is the subject of a separate
conviction and sentence under Section 506 Part-II IPC and cannot be
counted twice. The Victim Impact Assessment Report placed before the
learned Trial Court records that the prosecutrix suffered emotionally on
account of the incident.
71. Weighing these circumstances together, this Court notes that the
Appellant has undergone about seven years and six months of actual
custody, which exceeds the minimum of seven years prescribed for the
offence as it stood on the date of its commission. The features of this case
that weigh against the Appellant, namely the deceit, the isolated place and
the impact on the prosecutrix, are real, and they justify a term of
imprisonment above the minimum. They are sufficiently met by the period
actually served, which is above that minimum. The sentence of fifteen years,
imposed on the basis of the minority of the prosecutrix and the aggravated
form of the offence under Section 376(2) IPC, cannot be sustained once both
those foundations have gone.
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72. Having regard to the gravity of the offence on the one hand, and on
the other to the fact that the Appellant was a relatively young man at the
time of the offence, his clean antecedents and the period of imprisonment
already undergone, this Court is of the view that the reformative purpose of
sentencing would be served, and the demands of deterrence and
proportionality met, by limiting the sentence under Section 376(1) IPC to the
period already undergone.
73. Accordingly, the sentence of 15 years’ rigorous imprisonment under
Section 376(2) IPC is set aside, and the Appellant is sentenced under Section
376(1) IPC to the period of imprisonment already undergone by him. The
fine of ₹10,000/- imposed by the learned Trial Court, with the default
stipulation of simple imprisonment for six months, is maintained. The
sentences of seven years' rigorous imprisonment under Section 366 IPC and
of two years and six months' rigorous imprisonment under Section 506 Part-
II IPC, which have been fully undergone, and the fines of ₹5,000/- each with
the default stipulations, as imposed by the learned Trial Court, are affirmed.
The substantive sentences shall run concurrently, as directed by the learned
Trial Court.
74. In view of the aforesaid discussion, the present appeal is partly
allowed. The judgment of conviction dated 17.11.2021 is set aside insofar as
it convicts the Appellant under Section 4 of the POCSO Act, the conviction
under Section 376(2) IPC is altered to one under Section 376(1) IPC, and the
judgment is otherwise upheld. The order on sentence dated 18.01.2022 is
modified as above. The appellant shall be entitled to the benefit of set off
under Section 428 Cr.P.C.
75. The Appellant shall be released forthwith, if not required in any other
case. A copy of this judgment be transmitted to the learned Trial Court for
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information and necessary compliance, and to the Superintendent of the
concerned Jail. The appeal stand(s) disposed of in the above terms.
76. Pending application(s), if any, also stand disposed of.
VIMAL KUMAR YADAV, J.
OCTOBER 30, 2026/ ny/vs
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