Ali Khan vs State Of Nct Of Delhi & Anr.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27.10.2026
Date of Decision: 03.11.2026
Uploaded on: 03.11.2026
# CNR No. DLHC010477632025
+ CRL.A. 1012/2025
ALI KHAN .....Appellant
Through: Mr. Adit S. Pujari, Adv. (DHCLSC),
Mr. Bhavesh Seth, Mr. Harshwardhan
Pushkin Sharma, Mr. Vibhav Rawat,
Advs.
versus
STATE OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Raghuvinder Verma, APP
Mr. Rohan J. Alva, Adv. (Amicus
Curiae) & Mr. Anant Sanghi, Adv.
SI Sonal Raj, PS Bharat Nagar and SI
Vaishali, DPA Dwarka
CORAM:
HON’BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present criminal appeal has been filed under Section 415(2) of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
the ‘BNSS’), read with Section 528 thereof (corresponding to Sections 374
and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
‘Cr.P.C.’) assailing the judgment dated 01.04.2025 and the order on
sentence dated 15.04.2025 passed by the learned ASJ-01/POCSO, North-
West, Rohini District Courts, Delhi, in SC No. 318/2021, arising out of FIR
No. 122/2021 registered at Police Station Bharat Nagar, Delhi, for offences
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punishable under Sections 376, 363 and 506 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC’), read with Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
‘POCSO Act’).
BRIEF FACTS:
2. In brief, the case of the prosecution is that on 19.03.2021, the
complainant PD (identity withheld), who is the mother of the victim, got
registered the missing complaint of her daughter BP (identity withheld)
aged about 13 years. Victim BP was missing from her house since
15.03.2021 at 5.00 pm and her mother raised a suspicion that she had been
seduced and kidnapped by some unknown person. On the basis of the
complaint FIR under section 363 IPC was registered.
3. During investigation, despite sincere efforts victim could not be
traced out by the IO/SI Raj Kumar. WT message was flashed and
information was uploaded regarding kidnapping on Zipnet. Publication was
made in the newspaper. On 27.03.2021, SI Ravi Kumar produced the
missing girl BP alongwith the accused before SI Laxmi. Victim was got
medically examined from DCB hospital. IO/ SI Laxmi collected the seized
exhibits i.e. sexual assault evidence kit and clothes of the victim which were
deposited in the malkhana. Victim submitted that accused Ali Khan took
her with him and forcibly made physical relations with her.
4. IO/ SI Laxmi alongwith staff and the victim reached the spot i.e. E-
340, JJ Colony, Wazirpur, Delhi where accused established forcible
physical relations with the victim and prepared the site plan at the instance
of the victim. Accused was interrogated and arrested. His medical
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examination was got conducted and his exhibits were seized. Pointing out
memo was prepared at the instance of the accused. The statement u/s 164
Cr. P.C. of the victim was got recorded wherein the victim stated before
Ld. MM that accused took her with him. Accused is the dharam bhai of his
mother. When she tried to come to her parents’ house, accused used to beat
her. He used to make her stroll in the park for the entire night. He used to
forcibly make physical relations with her (jabardasti ganda kaam) daily.
He used to threaten her saying that even if he gets arrested then also when
he will come out of the jail he would kill her parents and sell all five
siblings. He also wanted to kill her maternal aunts, her chotey papa, her
maternal grandparents.
5. On 01.04.2021 victim was produced before CWC, from where her
custody was handed over to her mother. The date of birth documents of the
victim were collected from her first school attended and as per school
record her date of birth is 26.05.2008. The potency test of the accused got
conducted from RML Hospital and as per MLC there is nothing to suggest
that accused is incapable of performing sexual intercourse. The exhibits of
the case were sent to FSL. After investigation, charge sheet for the offence
u/s 363, 376, 506 IPC and 6 POCSO Act has been filed.
6. Copy of the charge sheet was supplied to the accused and arguments
on charge were heard. On 04.10.2021, Prima facie charge for the offence
u/s 363, 376, 506 IPC and Section 5 (l) (n) POCSO Act punishable u/s 6
POCSO Act was made out against the accused and charge was accordingly
framed by the Ld. Predecessor to which accused pleaded not guilty and
claimed trial.
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7. During admission/denial under Section 294 Cr. P.C. , accused
admitted the proceedings of recording u/s 164 Cr. P.C. by Ld. MM as Ex.
PX1/1, opinion on MLC of accused Ex. PX1/2, potency test of accused as
Ex. PX1/3 and Ex. PX1/4, recording of FIR without contents as Ex. PX1/5,
certificate under Section 65B of the Indian Evidence Act as Ex. PX1/6,
statement of Ct. Sumita who accompanied the victim for her medical
examination as Ex. PX1/7, statement of Ct. Mukesh who deposited the
exhibits to FSL Ex. PX1/8, entry made in register no. 19 and 21 Ex. PX1/9.
8. To prove its case against the accused and discharge its burden, the
prosecution examined twelve witnesses before the learned Trial Court,
whose testimonies have been discussed in the impugned judgment as under:
“ 4. PW-1 Ms. Anita Chahari, Senior Scientific
Officer (Biology), FSL deposed that on 21.05.2021,
three parcels in sealed condition were received in
the office of FSL. The said parcels were marked to
her for examination, all the said exhibits were
examined by her and after examination, she
prepared her report Ex. PW1/A and allelic data
report in this regard Ex. PW1/B.
5. PW-2 Dr. C.D. Jassal, Deep Chand Bhandu
Hospital identified the signatures and handwriting
of Dr. Jyoti Sr. Resident, Gynae and deposed that on
27.03.2021 victim B aged about 13 years old female
was examined by Dr. Jyoti vide MLC Ex PW2/A. Dr.
Jyoti had left the services of the hospital two years
prior and her present whereabouts are not known.
6. PW-3 Victim B the relevant portion of whose
testimony is as under:
“Ali Khan mujhe park me le gaya tha. Main mummy
papa ke pass jaane ko kehti thi to mujhe jaane nahi
deta tha mujhe maarta tha aur mere saath ganda
kaam karta tha.
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Q: Beta gande kaam se kya matlab hai ?
A : usne mere sharir mein haath deta tha, aur wo
meri shusu wali jagah par apni shusu wali jagah
dalta tha.
Jab bhi main apne mummy papa ke pass aane ki
koshish karti thi to mujhe maarta tha. Wo mujhe
apne friend ke ghar le gaya tha.
Mere papa aur mummy ladai kar rahe the to main
aur meri behan park mein chale gaye the aur humne
socha tha ki jab wo shant ho jayenge to hum ghar
chale jayenge. Ali khan mere pass aya aur kaha ki
tum ghar chalo, meri behan bhaag gai park se aur
Ali Khan mujhe park se dusare park le gaya tha jo
bahut door tha. Wahan kaali mata ka mandir tha
aur ek kamra bana hua tha, kamre ke peeche park
tha aur park mein wo mere saath ye galat us kamre
mein karta tha jo park ke peeche tha. Accused mere
saath bahut baar ye galat kaam karta tha usi kamre
mein. Jab main usse apne mummy papa ke pass
jaane ke liye kehti thi to wo mujhe maarta tha.
Mujhe dhamki deta tha ki jab main jail se chhoot
jaunga to tumhare mummy papa ko maar dunga aur
tumhare bhai behno ko baich dunga. Ali Khan
mujhe park mein ghumata tha apne saath hi. Ek din
Ali Khan mujhe aunty ke ghar le gaya aur main us
aunty ko mausi bolti thi. Mausi ne neeche jaa kar
bathroom se phone kiya police ko. Fir police aa gai
aur lady police bhi aa gai. Police ne meri mummy
ko phone kiya. Police ne mujhse puchh tachh ki.
Police mujhe raat ko hospital le kar gai thi aur mera
checkup hua tha. Mere pehne hue kapde hospital
mein le liye the aur maine dusre kapde daal liye the.
Hospital mein meri mummy mere saath thi…”
PW1 identified her thumb impression on the
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statement u/s 164 Cr.P.C Ex. PW3/A. She identified
her signatures on the site plan Ex. PW3/B, arrest
memo Ex. PW3/C, personal search memo Ex.
PW3/D. PW1 stated that her mother had made
accused as her dharam bhai. She correctly
identified the accused in the Court. She correctly
identified her clothes Ex. P1 and Ex. P2.
7. PW-4 teacher from school attended by the victim
child deposed that as per their record victim B was
admitted in their school on 18.07.2014 vide entry
made in admission register Ex. PW4/C, on the basis
of admission form and shapatpatra Ex. PW4/A and
Ex. PW4/B respectively. As per this record the date
of birth of victim is 26.05.2008.
8. PW-5 HC Shri Krishan deposed that on
27.03.2021, he alongwith SI Ravi and Ct. Sumita
went to the JJ Colony for the purpose of recovery of
the victim B, where the victim was recovered from
the house no. 17A/434, Patharwala Bagh, JJ
Colony, Wazirpur, Delhi. He apprehended accused
Ali Khan and victim was handed over to the Lady
Police official. Thereafter, the accused was arrested
by the IO vide arrest memo Ex. PW3/C, personally
searched vide memo Ex.PW5/A. IO recorded his
disclosure statement Ex. PW5/B. IO prepared the
site plan vide Ex. PW5/C. Accused Ali Khan was
medically examined from Deep Chand Bandhu
Hospital vide MLC no. PX1/2 and his exhibits were
handed over to him by the concerned doctor.
Thereafter, he came back to the police station and
handed over the accused alongwith his MLC and
exhibits to the IO. IO seized the exhibits of the
accused vide seizure memo Ex. PW5/D. He
correctly identified the accused in the Court.
9. PW-6 PD/ mother of victim the relevant portion
of whose testimony is as under:
“Accused Ali Khan ko maine dharam ka bhai
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banaya hua tha. Woh hamari jhuggi main hi rehta
tha hum logon ke saath. Ek din 2021 mein jab main
apne kaam se wapas aayi to mujhe meri badi beti
jiska naam B hai, ghar par nahin mili. Phir maine
apni beti ko aas pados main dhoonda. Ali Khan bhi
ghar se gayab tha. Mujhe shak hua ki Ali Khan meri
beti ko lekar chala gaya hai. Phir main Thane gayi
aur wahan police ko complaint kar di jis par meri
angoothey ke nishan hai. Complaint is now Ex. PW
6/A. Yeh baat 15.03.2021 ki hai. Maine police ko
apni beti ka photo bhi diya tha.
Kuch dino ke baad police walon ka phone aaya aur
bataya ki meri beti ko dhoondh liya gaya hai. Main
Thane gayi aur wahan mujhe meri beti mili. Meri
Beti ne mujhe bataya ki Ali Khan ne us ke saath
galat kaam kiya matlab sharirik sambandh banaya
aur wo bhi kayi baar aur usne bataya ki Ali Khan
use ghoomata phirata tha. Jab meri beti mujhe
batana chahti thi to wo use dhamkata tha. Meri beti
ki medical bhi hui jis par mere angoothe ke nishan
at point A hai. MLC is Ex. PW 6/B. Meri beti ke
Judge sahab ke samne bhi bayan hue they.
Meri beti ne police ko jagah bhi batayi thi jahan
accused ne uske saath galat kaam kiya tha. Jiska
police ne naksha mauka banaya aur jis par mere
angoothey ke nishan at point A hain. The site plan
is already Ex. PW 3/B. Police ne meri beti ko jahan
se baramad kiya tha us par bhi mere angoothey ke
nishan at point A hain. Recovery memo is Ex. PW
6/C. Police ne accused ko giraftaar bhi kar liya tha
jis par mere angoothey ke nishan at point C hain.
Arrest memo is already Ex. PW 3/C.
Main Ali Khan ko pehchaan sakti hun. Accused is
present in the Court today and has been correctly
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identified by the witness.”
10. PW-7 Inspector Ravi Kumar deposed that on
27.03.2021, he was informed by the secret informer
about the presence of victim and accused in JJ
Colony, Wazirpur. Thereafter, he alongwith HC
Shrikrishan, HC Sumita and secret informer
reached at JJ Colony Wazirpur, where they found
victim alongwith accused and brought them to the
PS and produced them before SI Laxmi. He
correctly identified the accused in the Court.
11. PW-8 ASI Ramesh Chand deposed that on
19.03.2021 at about 6.00pm complainant ‘P’ came
to the police station and she told him in that her
daughter was missing from 15.03.2021. He
recorded her statement Ex.PW6/A. He prepared the
rukka Ex.PW8/A and thereafter the present case is
marked to ASI Raj Kumar.
12. PW-9 Inspector Lakshmi deposed that on
27.03.2021, she received the call of duty officer of
PS Bharat Nagar. Accordingly, she came to the PS
Bharat Nagar in the mid night, where she met SI
Ravi Kumar and he produced victim ‘B’ alongwith
accused Ali Khan and mother of victim. She
correctly identified the accused in the Court. She
handed over the accused to Ct Shri Krishan. She call
the NGO by dialing 181. After some time, NGO
counselor came to the police station and counseling
was given to victim. She inquired from the victim
and thereafter victim was sent to DCB hospital
alongwith NGO counselor, mother of victim and Ct
Sumita. After the medical examination, Ct Sumita
produced the victim and exhibits of the victim which
she seized vide seizure memo Ex.PW9/A. She
deposited the exhibits to the malkhana. She
recorded the statements u/s 161 Cr.P.C of the victim
and her mother and relieved them.
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She corroborated the version of other prosecution
witnesses regarding the arrest, medical
examination and seizure of exhibits of the accused.
On 30.03.2021, statement u/s 164 Cr.P.C of the
victim was got recorded through PSI Sonia on her
direction.
13. PW10 SI Vaishali Kaushik deposed that on
01.04.2021, she produced the victim before the
CWC and from there her custody was given to her
mother. On 09.04.2021 the potency test of the
accused was conducted from RML hospital. During
investigation, she collected and verified the age
proof documents of the victim. On 21.05.2021 case
property was sent to the FSL. She concluded the
investigation and prepared the charge-sheet. She
received the FSL result and same was filed before
the Court. She correctly identified the accused in the
Court.
14. PW11 ASI Raj Kumar deposed on 19.03.2021,
he received the copy of FIR and original tehrir. He
checked the CCTV footage and tried to search for
the missing girl/victim but in vain. Complainant
disclosed name of accused Ali Khan as suspect.
15. PW12 Smt. Sunita Devi deposed that earlier she
used to reside in H.No. N-17A/434, Pattarwala
Bagh, JJ Colony. On 26.03.2021 accused brought
the victim to her house. She knew both of them. She
came to know that victim B was missing from her
house. She informed the police about both of them
and police apprehended them. Police made inquiry
from her.”
9. On the completion of prosecution evidence, an examination of accused
U/s 313 Cr. P.C. was conducted on 28.11.2024. All the incriminating
evidence was put to the accused and his statement was recorded u/s 313 Cr.
P.C. In reply to the incriminating evidence, accused denied the allegations
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against him in toto. Accused stated it to be a false case. There was money
transaction between him and the family of victim and due to that reason he
has been falsely implicated in the present case. Victim was not with him from
19.03.2021 to 26.03.2021. In the afternoon of 26.03.2021, victim met him and
he counselled her to go back to her house but she did not want to go back
home. Thereafter, he took her to the house of PW12/Sunita Devi and Sunita
Devi called the police and police wrongly apprehended him. The witnesses
are interested. He is innocent and falsely implicated him. Accused chose not
to lead evidence in his defence. Hence, the matter was listed for final
arguments.
st
10. The learned Trial Court, vide the impugned judgment dated 1 April,
2025, convicted the appellant and held as under:
“55. In the present case from the unblemished
consistent and trustworthy testimony of PW3 the
prosecution has established the essential
ingredients required to prove the charges framed
against the accused. The testimony of prosecution
witnesses are found to be trustworthy and reliable,
and the prosecution has succeeded in proving the
guilt of the accused. Hence, in totality of the facts
and circumstances as well as the above discussions,
it is proved that the accused Ali Khan has committed
the offence of charge. Accordingly accused Ali Khan
stands convicted for the offence under Section
363/376/506 IPC and Section 6 POCSO Act.”
11. Consequent upon the judgment of conviction, the learned Trial Court,
th
vide Order on Sentence dated 15 April, 2025, imposed the following
sentence upon the appellant:
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“9. Further, considering the financial condition and
capacity of convict and the fact the convict is an able
bodied person, hence a fine of Rs. 20,000/- (Rupees
Twenty thousand Only) is imposed on convict for the
offence punishable under Section 6 POCSO Act and
in case of default in payment of fine, he shall
undergo simple imprisonment of six months.
Further, fine of Rs. 10,000/- (Rs. Ten Thousand
only) is imposed on the convict for the offence
punishable under Section 363 IPC and in case of
default in payment of fine, he shall undergo further
simple imprisonment of three months. Further, fine
of Rs. 5,000/- (Rs. Five Thousand only) is imposed
on the convict for the offence punishable under
Section 506 IPC and in case of default in payment
of fine, he shall undergo further simple
imprisonment of one month. As per submissions by
Ld. Addl. PP for the State that expenses have been
incurred by the the State during prosecution of the
case, hence, out of the fine amount paid by the
convict, an amount of Rs. 10,000/- (Rupees Ten
thousand only) shall be paid to State towards the
expenses incurred by the prosecution. The
remaining fine amount shall be paid to the victim as
part of compensation to be provided to her.
Offence Substantive
Sentence
Fine Senten
ce in
default
of fine
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Section
06
POCSO
Act
20 years
Rs.
20,00
0/-
SI Six
months
(Twenty
years)
rigorous
imprisonment
Section
363 IPC
7 years
Rs.
10,00
0/-
SI
Three
months
(Seven
years)
rigorous
imprisonment
Section
506 IPC
02 years
Rs.
5,000
/-
SI One
month
(Two years)
rigorous
imprisonment
It is reiterated that all the sentences shall run
concurrently and the benefit of Section 428 Cr. P.C.
(u/s 468 BNSS) be accorded to victim.
Compensation
“ 10. The last question remains is with respect to the
compensation part. I have perused the record. The
victim was aged about 12 years 09 months at the
time of incident. Victim suffered through a lot of
physical pain and has faced the worst hours of her
life. The victim lives in a rented house having one
room. The father of the victim is handicapped and
having income of Rs. 3000/- per month. The fine
imposed upon the convict which has been awarded
to the victim under Section 357 Cr. P.C. is found to
be inadequate. Hence, I deem it appropriate to
proceed u/s 357A Cr. P.C. as the circumstances
demand so.
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11. It is reported by the Ahlmad of the Court that no
interim compensation was awarded to the child
victim.
12. In the case of X v. State of NCT of Delhi (acting
through its Secretary) and anr. in Crl. A. 63/2022
decided by the Hon’ble Delhi High Court on
20.10.2022, the Hon’ble Court has held in para 42
and 43 as under:
“42. When the act provides two spectrum one
minimum one maximum, the leaning must be
towards the maximum. Since sexual violence
derails the life of the survivor, it is important
that the compensation must aid in getting the
life of the survivor back on track. Adequate
assistance to the survivor can go a long way in
socially and psychologically empowering the
survivor.
43. The compensation scheme states the
maximum limit. In any beneficial scheme/
legislation, there cannot be a concept of
maximum. How can there be price tag on the
suffering of the survivor? No amount of
compensation can undo the trauma. The least
that can be done to help the survivor is to get
his/her life back on track. However, pecuniary
compensation can be of assistance in the
rehabilitation of the survivor”.
13. Further, Hon’ble High Court in para 47 of the
same judgment as held as under:
“47. Hence for POCSO survivors of “rape,” it
should be 7 +3.5=10.5 lakhs (50% of 7 lakhs
being added in POCSO cases as per DVC
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scheme) lakhs. The final compensation shall not
be less than 10.5 lakhs”.
14. Coming to the case in hand, the victim has been
subjected to aggravated penetrative sexual assault
and mental as well as physical trauma. As a result
of the said incident not only the victim but her entire
family members have been subjected to humiliation
and insult by the society and incident has left grave
impact on her mental, physical and emotional being
for which she needs financial support.
15. Further considering all the factors as
enumerated above, as per Rule 9 of The Protection
of Children from Sexual Offences Act, 2020, the law
laid down in X v. State of NCT of Delhi (acting
through its Secretary) (supra) and the facts and
circumstances of the present case, I deem it
appropriate to grant the final compensation to the
tune of amount of Rs. 10,50,000/- (Rs. Ten lakh Fifty
thousand Only) to the victim “B” under provision of
33(8) of the POCSO Act read with Rule 9 of POCSO
Rules 2020 in the name of victim child and the said
amount shall be released to the victim child as per
rules.
16. SHO PS concerned to ensure the presence of the
victim before the Ld. Secretary, DLSA, North West
and thereafter the Ld. Secretary, DLSA shall take all
necessary steps towards the further formalities
required for disbursal of the compensation amount
and is directed to disburse the amount in
accordance with law and subsisting Rules at the
earliest as per rules.
17. Being a POCSO case, the order will not be
uploaded on the website, however, a copy of the
order be sent to the Ld. Secretary DLSA (North
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West) for information and necessary compliance by
all possible modes, as per rules. Copy of this order
be also sent by the Reader on the dedicated email
ID i.e. [email protected] of DLSA
circulated.
18. Copy of the judgment be given to convict and
alongwith the copy of order on sentence free of
costs. Warrants of commitment as per Form-34 Cr.
P.C. be prepared accordingly.
19. Convict is informed of his right to prefer an
appeal against this judgment and Order on
Sentence. He has been apprised that if he cannot
afford to engage an Advocate, he can approach the
Legal Aid Cell, Tihar Jail or write to Ld. Secretary,
Delhi High Court, Legal Services Committee, 34-
37, Lawyer Chamber Block, High Court of Delhi.
20. In view of Section 365 Cr. P.C. (now Section
406 BNSS), a copy of the judgment be also sent to
the District Magistrate concerned for his
information.
12. Aggrieved by the aforesaid impugned judgment and order on
sentence, the appellant has challenged both before this Court.
Submissions on Behalf of the Appellant
13. Learned counsel for the appellant and submitted that the judgment of
the learned Trial Court is based on surmises and conjectures and not on the
correct appreciation of evidence, therefore, the impugned judgment
deserves to be set-aside and the appeal of the appellant be deserves to be
allowed. That there are many lacunae on the part of the prosecution who
failed to prove the case beyond reasonable doubt and it goes in favour of
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the appellant.
14. Learned counsel for the appellant further submitted that the
prosecution has failed to prove foundational facts in support of its case,
therefore presumption under Section 29 of POCSO Act could not be raised
against the appellant.
15. Learned counsel for the appellant further submitted that the entire
sub-stratum of the prosecution case and subsequent conviction are reliant
only on the statements and testimony of PW-3 i.e., victim and PW-6 i.e.,
mother of the victim.
16. Learned counsel for the appellant further submitted that the age of
PW-3 at the time of recording of the evidence is doubtful while considering
the school records where she is recorded to 13 years old. He submitted that
as a rule of prudence, the court ought to have considered the testimony of
child witness with close scrutiny. That being at a tender age, a child is
susceptible to tutoring by the police and family members more so when
they are unable to form a discreet opinion about the nature of the incident
due to immaturity of understanding.
17. Learned counsel for the appellant has placed reliance upon the
judgment of the Hon’ble Supreme Court in Nirmal Premkumar v. State of
Tamil Nadu, (2024) 20 SCC 293 , wherein it was observed that although a
conviction can be sustained solely on the testimony of the prosecutrix,
without requiring any further corroboration, the testimony must satisfy the
test of a sterling witness. It was further submitted that the quality,
consistency and credibility of such testimony must be of an exceptionally
high standard and that an unreliable or insufficient account of the
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prosecutrix, particularly where it suffers from identifiable inconsistencies,
material omissions or inherent gaps, cannot form the sole basis for
sustaining a conviction.
18. It was further submitted by learned counsel for the appellant that the
appellant was falsely implicated in the present case as he was not even
present at the place of the incident at the relevant time. It was submitted
that during the course of the investigation specifically by PW-11 ASI Raj
Kumar, an omission was made in not reviewing the CCTV footage of the
Park and surrounding areas near the victim’s house on 15.03.2021. It was
added that PW-11 failed to record the statement of an important witness,
the victim’s younger sister, who was present with the victim at the Park at
the relevant time.
19. Learned counsel for the appellant added that the learned Trial Court
erred in the law and on the facts by convicting the appellant without
properly appreciating the material inconsistencies and contradictions in the
prosecution’s case. He submitted that as per the testimony of the victim’s
mother (PW-6), a missing complaint in respect of her daughter was filed by
her on 15.03.2021 at around 5.00. He pointed out Ex. PW 6/A which is the
complaint by the mother of the victim .
20. Learned counsel for the appellant further submitted that the said
complaint was in fact lodged at the concerned police station only on
19.03.2021. He placed reliance on DD No.66A dated 19.03.2021 (Ex.
PW6/A), which subsequently formed the basis for the registration of the
FIR. He submitted that this contradiction remains wholly unexplained by
the prosecution. That such inordinate and unexplained delay materially
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affects the credibility of the prosecution case and raises serious doubts
regarding the truthfulness and reliability of the version put forth by the
prosecution.
21. Learned counsel for the appellant further submitted that the Ld. Trial
Court has failed to appreciate a material contradiction in the prosecution’s
case. He pointed out that while the prosecution claims the victim was
recovered by the police on 27.03.2021 (Ex.PW6/C), the counselling report
on record unequivocally reflects that the victim was counselled on
26.03.2021, i.e. prior to her purported recovery. He submitted that the
failure of the learned Trial Court to scrutinize this apparent contradiction
constitutes a grave miscarriage of justice, vitiating the entire prosecution
story and thereby entitling the appellant to acquittal.
22. Learned counsel for the appellant further submitted that the statement
of the victim under section 164 Cr. P.C. was recorded on 30.03.2021, after
a lapse of 3 days from the recovery of the victim. He added that the
unexplained and unjustified delay in conducting the medical examination
and recording the statement under section 164 Cr.P.C. is not only contrary
to the standard procedure under POCSO Act but also seriously undermines
the integrity of the investigation.
23. Learned counsel for the appellant further submitted that the statement
has been recorded by the police after 4 days of the alleged incident. The
allegations raised in FIR are false and lodged on the instructions of NGO,
who had been continuously interfering in the private matter of the family
of the appellant. That the PW-3 had given the statements with the
suggestion of NGO counsellor.
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24. Learned counsel for the appellant further submitted that no evidence
regarding the penetrative sexual assault is seen in the medical evidence and
no external or internal injury is seen on private part of the child victim in
MLC, that the medical evidence also does not corroborate the statement of
the victim.
25. Learned counsel for the appellant further submitted that as per the
Medico Legal Certificate (MLC) of the alleged victim, the medical
examination was conducted on 27.03.2022; however, in the seizure memo
of Exhibits of victim (Ex.PW9/A) recovered from the victim, the date
mentioned at the bottom is 19.03.2021 and similarly, as per the MLC of the
appellant, the medical examination was conducted on 27.03.2021, whereas
the date mentioned in the corresponding seizure memo is again shown
19.03.2021. The counsel added that this discrepancy raises serious question
as to the authenticity and accuracy of the seizure memos, the timing of
recovery of exhibits, and cast grave doubt on whether the procedures were
conducted as per law.
26. Learned counsel for the appellant further submitted that the learned
Trial Court has committed an error in convicting the appellant solely on the
basis of the testimony of the child victim. He further states that the victim’s
testimony is not up to the mark.
27. Learned counsel for the appellant further submits that the appellant
had no motive of any sexual assault. It was further submitted that the entire
case against the appellant is a result of false implication by the victim with
the sole intention to shielding her boyfriend. The learned counsel state that
the victim had voluntarily left her house and gone to be with her boyfriend
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(another boy), the appellant caught the victim with her boyfriend and
brought her to the house of her aunt/mausi who is PW-12. He further stated
that it was only thereafter that the victim to protect her boyfriend from any
possible legal consequences and to divert attention falsely implicated the
appellant. The learned counsel pointed out that during her cross-
examination, PW-12 stated that “Victim B ke baare mein main ye jaanti
hun ki iss case ke baad bhi wo kissi aur ke saath bhaag gayi hai”. He made
the submission that the testimony of PW-12 Sunita Devi also supports the
appellant’s case and cast serious doubt on the prosecution story.
28. Learned counsel for the appellant further submitted that the
conviction under Section 6 read with Section 5(i)(n) of the POCSO Act is
legally unsustainable, as the foundational ingredients of the crime has not
been established. It is submitted that, while the prosecutrix (PW-3), in her
testimony, stated that the appellant did not reside with her or her family in
the same household, her mother (PW-6), on the contrary, deposed that the
appellant used to reside with them in their jhuggi.
29. Learned counsel for the appellant also submitted that the above the
quantum of sentence is harsh and uncalled for. It was submitted that in the
facts and circumstances of the case, leniency should be shown to the
Appellant.
Submissions On Behalf Of The Respondent-state:
30. Per contra, learned APP for the State has opposed the appeal and
submitted that the learned Trial Court has rightly appreciated the evidence
on record and that the impugned judgment does not suffer from any
illegality or perversity warranting interference. It is submitted that the
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prosecution has successfully established the guilt of the appellant beyond
reasonable doubt through the cogent and consistent testimony of the
prosecutrix, duly supported by the surrounding circumstances and
documentary evidence.
31. With regard to the alleged defects and inconsistencies in the
investigation, learned APP submitted that mere irregularities or lapses in
the investigation cannot, by themselves, be a ground to discard otherwise
reliable and trustworthy prosecution evidence. It is contended that the
alleged discrepancies concerning the sequence of events, recovery of the
prosecutrix, recording of statements, preparation of seizure memos and
non-examination of certain independent witnesses do not discredit the
substantive evidence establishing the commission of the offence. It is
further submitted that the Court must assess the quality of the evidence
rather than be swayed by every procedural lapse in the investigation.
Reliance in this regard is placed upon Ashok v. State, 2026 SCC Online
Del 5413 , particularly paragraphs 26 to 29 thereof.
32. On the question of age, learned APP submits that the prosecution has
duly established the minority of the prosecutrix through the school records
proved by PW-4. As per the said records, the date of birth of the prosecutrix
was 26.05.2008, thereby establishing that she was approximately 12 years
and 9 months old at the time of the incident. It is submitted that the
documentary evidence has been duly proved before the learned Trial Court
and no material has been brought on record to discredit the same. Even
otherwise, any discrepancy in the subsequent oral statement of the
prosecutrix regarding her age cannot override the contemporaneous
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documentary evidence establishing her date of birth.
33. Learned APP further submitted that the testimony of the prosecutrix
(PW-3) is clear, categorical and consistent on the material particulars of the
occurrence. She has specifically narrated the manner in which the appellant
took her away, subjected her to repeated penetrative sexual assault,
prevented her from returning to her parents and extended threats to her and
her family. It is submitted that her testimony inspires confidence and has
remained substantially consistent with her statement recorded under
Section 164 Cr.P.C. It is further contended that the conviction can validly
rest upon the sole testimony of the prosecutrix where the same is found
reliable and trustworthy, and independent corroboration is not an
indispensable requirement of law. In support of this submission, reliance is
placed upon State of Himachal Pradesh v. Manga Singh, ( 2019) 16 SCC
759 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 .
34. Learned APP, therefore, submitted that the learned Trial Court has
correctly appreciated the evidence and that the appellant has failed to
demonstrate any material contradiction or infirmity which would create
reasonable doubt regarding his guilt. Accordingly, it is prayed that the
present appeal be dismissed and the impugned judgment of conviction and
order on sentence be upheld.
Findings and Analysis
35. This Court has heard learned counsel for both the parties and perused
the material on record.
36. The principal contention of the appellant is that the conviction rests
primarily upon the uncorroborated testimony of the prosecutrix, which is
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allegedly inconsistent and unreliable. It is further contended that the
investigation suffers from material defects, the age of the prosecutrix has
not been conclusively established and the medical and forensic evidence
does not support the prosecution case.
Age of the Victim
37. At the outset, it is pertinent to point out that the appellant has sought
to question the age of the victim by referring to certain statements made by
her at different stages of the proceedings. However, the record reveals that
the prosecution examined PW-4, a school official, who proved the relevant
admission record, admission form and affidavit (Ex. PW4/A to Ex.
PW4/C). As per the school record, the date of birth of the prosecutrix was
26.05.2008. The incident in question pertains to March, 2021. Accordingly,
the prosecutrix was approximately 12 years and 9 months old at the relevant
time. The documentary evidence regarding her date of birth, duly proved
through the school witness, sufficiently establishes that she was a child
within the meaning of Section 2(1)(d) of the POCSO Act. Consequently,
the contention regarding uncertainty in the age of the prosecutrix is devoid
of merit.
Testimony of the Victim:
38. It is a well settled law that testimony of a prosecutrix in a case of
sexual assault stands on the same footing as that of an injured witness. Her
testimony, if found reliable, cogent and trustworthy, can by itself form the
basis of conviction without requiring independent corroboration. The
requirement is that the Court must carefully examine her testimony and
satisfy itself regarding its credibility. Reliance in this regard may be placed
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upon State of H.P. v. Manga Singh , (2019) 16 SCC 759 where the Hon’ble
Supreme court stated that:
10. The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires
confidence. The conviction can be based solely on
the solitary evidence of the prosecutrix and no
corroboration be required unless there are
compelling reasons which necessitate the courts to
insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix is
not a requirement of law, but a guidance of
prudence under the given facts and circumstances.
Minor contractions or small discrepancies should
not be a ground for throwing the evidence of the
prosecutrix.
11. It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine qua
non for conviction in a rape case. If the evidence of
the victim does not suffer from any basic infirmity
and the “probabilities factor” does not render it
unworthy of credence. As a general rule, there is no
reason to insist on corroboration except from
medical evidence. However, having regard to the
circumstances of the case, medical evidence may not
be available. In such cases, solitary testimony of the
prosecutrix would be sufficient to base the
conviction, if it inspires the confidence of the court.”
39. Further, the Hon’ble Supreme court in Phool Singh v. State of M.P.,
(2022) 2 SCC 74 stated that:
“7. At the outset, it is required to be noted that in
the present case, the prosecutrix has fully supported
the case of the prosecution. She has been consistent
right from the very beginning. Nothing has been
specifically pointed out why the sole testimony of the
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prosecutrix should not be believed. Even after
thorough cross-examination, she has stood by what
she has stated and has fully supported the case of
the prosecution. We see no reason to doubt the
credibility and/or trustworthiness of the
prosecutrix. The submission on behalf of the
accused that no other independent witnesses have
been examined and/or supported the case of the
prosecution and the conviction on the basis of the
sole testimony of the prosecutrix cannot be
sustained is concerned, the aforesaid has no
substance.
8. In Ganesan [Ganesan v. State, (2020) 10 SCC
573 : (2021) 1 SCC (Cri) 76] , this Court has
observed and held that there can be a conviction on
the sole testimony of the victim/prosecutrix when the
deposition of the prosecutrix is found to be
trustworthy, unblemished, credible and her
evidence is of sterling quality. In the aforesaid case,
this Court had an occasion to consider the series of
judgments of this Court on conviction on the sole
evidence of the prosecutrix…”
40. At this stage it would be apposite to reproduce the relevant part of
the statements of the victim before the magistrate and the learned Trial
Court and examining it in the light of law above stated:
164 Examination in chief
यहपाँच Ǒदन पहलेक ȧ बातहै।मुझे
Ali Khan mujhe park me le gaya tha.
Main mummy papa ke pass jaane ko
kehti thi to mujhe jaane nahi deta
tha mujhe maarta tha aur mere
saath ganda kaam karta tha. Q:
Beta gande kaam se kya matlab hai
?
A: usne mere sharir mein haath deta
अल ȣ बाहरलेकरगयाथा।अल ȣ को
मेर ȣ म àमी नेधम [ भाईबनारखाहै।
-
ͩफर जबम ɇ अपनेम àमी पापाके
,
पासआनेक ȧ को ͧशश करतीथी तो
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वहमुझेबहुतमारताथा।वहमुझे
tha, aur wo meri shusu wali jagah
par apni shusu wali jagah dalta tha.
Jab bhi main apne mummy papa ke
pass aane ki koshish karti thi to
mujhe maarta tha. Wo mujhe apne
friend ke ghar le gaya tha.
Mere papa aur mummy ladai kar
rahe to main aur meri behan park
mein chale gaye the aur humne
socha tha ki jab wo shant ho jayenge
to hum ghar chale jayenge. Ali khan
mere pass aya aur kaha ki tum ghar
chalo, meri behan bhaag gai park se
aur Ali Khan mujhe us park se
dusare park le gaya tha jo bahut
door tha. Wahan kaali mata ka
mandir tha aur ek kamra bana hua
tha, kamre ke peeche park tha aur
park mein wo mere saath ye galat us
kamre mein karta tha jo park ke
peeche tha. Accused mere saath
bahut baar ye galat kaam karta tha
usi kamre mein. Jab main usse apne
mummy papa ke pass jaane ke liye
kehti thi to wo mujhe maarta tha.
Wo mujhe dhamki deta tha ki jab
main jail se choot jaunga to tumhare
mummy papa ko maar dunga aur
tumhare bhai behno ko baich dunga.
Ali Khan mujhe park mein ghumata
tha apne saath hi. Ek din Ali Khan
mujhe aunty ke ghar le gaya aur
main us aunty ko mausi bolti thi.
Mausi ne neeche jaa kar bathroom
se phone kiya police ko. Fir police
aa gai aur lady police bhi aa gai.
Police ne meri mummy ko phone
Parks म Ʌ रातभरघुमाताथा।वह
मेरेसाथजबरद èती करताथाऔर
मेरेसाथगंदाकामकरताथा।वहये
सबहररोजकरताथा।वहबोलताथा
,
ͩक म ɇ पकड़ाभीजाऊँ तोजेलसे
-
छूटकरतेरेमाँ बापकोमारदूँगाऔर
-
ɉ भाई बहन ɉ
तुमपाँच कोबेचदूँगा।
वहमेर ȣ मासीकोभीमारनाचाहता
-
है।वहमेरेछोटेपापाकोऔरनाना
नानीकोभीमारनाचाहताहै।मेर ȣ
एकऔरमासीअशोक ͪवहार म Ʌ रहती
,
ह ɇ वहउ ÛहɅ भीमारनाचाहताहै।
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kiya. Police ne mujhse puchh tachh
ki. Police mujhe raat ko hospital le
kar gai thi aur mera checkup hua
tha. Mere pehne hue kapde hospital
mein le liye the aur maine dusre
kapde daal liye the. Hospital mein
meri mummy mere saath thi. Mere
judge sahab ke samne bhi bayan hue
the.
41. A comparison of the statements of the prosecutrix recorded under
Sections 161 and 164 Cr.P.C. with her testimony before the learned Trial
Court reveals consistency on the material particulars of the prosecution
case. At all stages, she has consistently stated that the appellant took her
away, repeatedly subjected her to sexual assault, prevented her from
returning to her parents and threatened her and her family. During her
examination-in-chief, she specifically explained the nature of the sexual
assault and identified the appellant.
42. This Court has also considered the law laid down in Nirmal
Premkumar v. State of Tamil Nadu (Supra) relied upon by learned counsel
for the appellant. In the present case, the testimony of the prosecutrix, when
read in its entirety and considered alongside the other evidence on record,
does not suffer from any such material infirmity as would render it
unworthy of reliance.
43. Her testimony has withstood the test of cross-examination, wherein
she denied the suggestions of false implication, tutoring by her parents and
the appellant having merely taken her to her aunt's house at her own request.
The fact that she did not raise an alarm despite the presence of other persons
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in the park does not, in the circumstances of the present case, render her
testimony unreliable, particularly in view of her consistent deposition
regarding the threats and physical violence extended by the appellant. No
material contradiction or infirmity has emerged in her testimony so as to
discredit her version. Consequently, the judgment relied upon by the
appellant does not advance his case, as the factual circumstances therein
cannot be mechanically applied to the facts of the present case
44. The contention that the conviction could not have been founded upon
the sole testimony of the prosecutrix is, therefore, without merit. The
Hon’ble Supreme Court has consistently held that the testimony of a
prosecutrix, if trustworthy and inspiring confidence, does not require
corroboration as a matter of law. In the facts and circumstances of the
present case, the testimony of PW-3 is sufficiently cogent and inspires
confidence.
Irregularities in the Investigation
45. The appellant has pointed out certain discrepancies in the prosecution
case, including the initial missing complaint referring to an unknown
person, the difference in the dates of recovery and counselling, the delay in
recording the statement under Section 164 Cr.P.C., discrepancies in the
seizure memos and non-examination of independent witnesses. However,
the initial complaint was lodged when the whereabouts of the prosecutrix
were unknown, and the appellant was subsequently identified by the
prosecutrix. The aforesaid discrepancies, in the facts of the present case, do
not discredit the otherwise cogent and trustworthy testimony of the
prosecutrix.
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46. It is settled that defective investigation, by itself, is not a ground to
discard otherwise reliable prosecution evidence. In Ashok v. State , 2026
SCC OnLine Del 541 , this Court has reiterated that the evidence is required
to be weighed on its merits and that mere non-examination of independent
witnesses is not fatal where the evidence on record is otherwise credible
and sufficient to establish guilt.
47. The contention regarding non-establishment of the exact place of
occurrence also does not advance the case of the appellant, as the
prosecutrix has specifically described the place where the alleged acts were
committed and the site plan was prepared at her instance. Further, the plea
of false implication on account of an alleged monetary dispute or to protect
another boy remains unsupported by any material on record. The testimony
of PW-12, who stated that the appellant had brought the prosecutrix to her
house, also supports the prosecution version regarding the circumstances
preceding her recovery.
48. As regards the offence punishable under Section 6 of the POCSO
Act, the prosecution has established that the prosecutrix was a child within
the meaning of the Act and that the appellant subjected her to penetrative
sexual assault on several occasions. Such repeated acts bring the case within
the ambit of aggravated penetrative sexual assault under Section 5(l) of the
POCSO Act, punishable under Section 6 thereof. As regards the
applicability of Section 5(n) of the POCSO Act, the contention of the
appellant that he was not residing with the prosecutrix’s family is not
sustainable. In this regard, the testimony of PW-6, the mother of the
prosecutrix, assumes significance. She categorically deposed before the
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learned trial court that:
“Accused Ali Khan ko maine dharam ka bhai
banaya hua tha. Who hamari jhuggi main hi rehta
tha hum logon ke saath.”
Further in her cross-examination PW-6 maintains the following:
“Accused Ali Khan lock down se hamarey saath reh
raha tha. Accused Ali Khan Ashok Vihar mcin
Guard ka kaam karta tha. Wo shaam ko ghar se
09.00 p.m. apnc kaam par jaata tha aur subah 08.00
a.m. aa jaata tha. Mujhe nahin pata accused kitna
kamata tha. Hamein yeh koi paisa nahin deta tha.
Police ne mere eik papar par angoothey ke nishan
liye the.”
The prosecutrix (PW-3) has also consistently stated that the appellant was
the dharam bhai of her mother. Accordingly, the ingredients of Section 5(n)
of the POCSO Act also stands established. Consequently, the conviction
under Section 5(l) and 5(n) of the POCSO act punishable under Section 6
of the POCSO Act is also sustainable.
49. Coming to the quantum of sentence, it is pertinent to note that the
offence under Section 6 of the POCSO Act, as applicable to the present
case, prescribes a minimum sentence of twenty years of rigorous
imprisonment. The learned Trial Court has awarded the appellant the
minimum prescribed sentence of twenty years’ rigorous imprisonment for
the said offence. Having regard to the nature and gravity of the offence, the
age of the victim and the circumstances in which the offence was
committed, this Court finds no ground to interfere with the sentence
imposed by the learned Trial Court. Further, the sentences imposed for the
offences under Sections 363, 376 and 506 IPC have also been directed to
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run concurrently. Accordingly, the order on sentence does not warrant any
interference and is upheld.
Conclusion
50. Keeping in view the aforesaid principles, the conviction of the
appellant for the offences punishable under Sections 363, 376 and 506 IPC
and Section 6 of the POCSO Act, as recorded by the learned Trial Court,
calls for no interference. The sentence imposed upon the appellant,
including the direction for payment of compensation to the victim, also does
not warrant interference, particularly in view of the nature and gravity of
the offences and the circumstances of the victim.
51. The appellant shall be entitled to the benefit of Section 428 CrPC in
accordance with law. Therefore, the appeal deserves to be dismissed and
disposed of accordingly. The pending application(s), if any, stand disposed
of in the above terms.
52. A copy of this judgment be sent to the learned Trial Court and the
learned Superintendent of the concerned Jail for information and necessary
compliance.
53. The judgment be uploaded on the website forthwith.
MADHU JAIN
(JUDGE)
NOVEMBER 3, 2026/RM/GS
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