State (Nct Of Delhi) vs Dilavar Singh
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18.03.2026
Pronounced on: 30.04.2026
+ CRL.A. 169/2022
STATE .....Appellant
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav and
Mr.Atiq Ur Rehman, Advs.
versus
DILAVAR SINGH ..…Respondent
Through: Ms.Rakhi Dubey, Adv.
(DHCLSC) (Amicus Curiae)
with Ms.Arpita Srivastava,
Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. This appeal has been filed challenging the judgment dated
28.11.2019 passed by the learned Additional Sessions Judge (POCSO)
West, Tis Hazari Courts, Delhi (hereinafter referred to as the „Trial
Court‟) in Sessions Case no. 219/2013 arising out of FIR no. 183/2013
under Sections 342/506/376 of the Indian Penal Code, 1860
(hereinafter referred to as „IPC‟) and Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
„POCSO Act‟), registered at Police Station Paschim Vihar, Delhi,
whereby the learned Trial Court acquitted the respondent of the
Charges.
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CASE OF THE PROSECUTION
2. It is the case of the prosecution that on the night of 26.06.2013
at about 1:30 am, the respondent, who lives in the neighbourhood of
the victim, came to the house of the victim and knocked at the door,
while her family members were asleep. The victim, believing the
person at the door to be her father, opened the same, whereupon the
respondent was present and he put his hand on victim‟s mouth and
took her to his house. It is alleged by the prosecution that under the
threat to kill her, the respondent disrobed her and forcibly established
physical relations with her. The victim then raised an alarm and ran
towards her house in the gali outside, where she was met by her
parents. She narrated the entire incident to them, whereafter police
was informed and the present FIR was registered.
3. The victim was medically examined on the same day at 6:55 pm
and her statement under Section 164 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟) was also
recorded on 27.06.2013 .
4. Upon completion of the investigation, Charge-Sheet was filed
against the respondent on 17.08.2013, and Charge under Sections
376/342/506 of the IPC and Section 4 of the POCSO Act was framed
against the respondent vide order dated 07.10.2013 passed by the
learned Trial Court, to which the respondent pleaded not guilty and
claimed trial.
5. The prosecution, in support of its case, examined nine
witnesses, including the victim, her sister, her parents, the doctor who
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conducted her medical examination, and the Investigating Officer. The
statement of the respondent under Section 313 of the Cr.P.C. was also
recorded by the learned Trial Court on 18.11.2019, in which he
claimed innocence and stated that he has been falsely implicated in the
case.
IMPUGNED ORDER:
6. The learned Trial Court, upon appreciation of evidence on
record, held that the prosecution had failed to establish the age of the
victim beyond a reasonable doubt. In the absence of any documentary
proof, that is, the school or birth certificate issued by a competent
authority, reliance was placed on an Ossification Test which was
conducted on 08.07.2013 and which opined her age to be between the
bracket of 16 to 18 years at the time of the incident. Extending the
benefit of margin of error in favour of the respondent, the victim was
treated as a major and consequently, the provisions of POCSO Act
were held to be inapplicable.
7. The learned Trial Court thereafter examined the question of
consent and found that the conduct of the victim did not conclusively
support the case of forcible sexual intercourse. It was observed that
the victim had opened the door herself and had not raised any alarm at
that stage, despite the respondent being known in the locality. The
Trial Court also found it improbable that she could have been forcibly
taken away without attracting the attention of other family members
who were sleeping in the same house.
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8. While appreciating the testimony of PW-2 (prosecutrix/victim)
and PW-5 (her sister), it was observed that both were sleeping
together on the ground floor at the time of the incident, while the
parents were on the upper floor. It was further observed that though
the victim stated that she opened the door believing it to be her father,
the evidence on record showed that her father was already present in
the house, and there was nothing to indicate that she was unaware of
this fact.
9. The learned Trial Court also considered the testimony of the
elder step sister of the victim PW-5, who, in her cross examination,
admitted that she had not heard any knocking at the door and had only
found her sister to be missing.
10. The learned Trial Court also observed that the medical and
scientific evidence did not fully support the prosecution case and that
there was no clear evidence of resistance, giving rise to a doubt as to
whether the victim was forcibly taken or had accompanied the
respondent voluntarily
11. In view of the aforesaid, the learned Trial Court held that the
prosecution had failed to prove the charges against the respondent
beyond reasonable doubt and accordingly acquitted him.
12. Aggrieved of the same, the State has filed the present appeal.
SUBMISSIONS OF THE LEARNED APP
13. Mr. Aman Usman, the learned APP for the State, submits that
the impugned judgment of the learned Trial Court is perverse and
contrary to the evidence on record, as the learned Trial Court has
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erred in appreciating the evidence while acquitting the respondent.
He submits that the statement of the victim was consistent and
worthy of acceptance. It was also supported and corroborated by the
statements of the parents, the sister of the victim, as also from the
injuries found on her by Dr. Supriya Prashar (PW-6).
14. The learned APP further submits that the learned Trial Court
has erred in holding that the prosecution failed to establish that the
prosecutrix was below eighteen years of age. In the absence of
documentary proof, reliance was placed on the Ossification Test
assessing her age between 16 and 18 years; however, the learned
Trial Court incorrectly adopted the upper limit of the range. It is
contended that, particularly under the POCSO Act, a beneficial
legislation aimed at protecting the minors, the lower end of the age
range ought to have been considered. In support of his submission,
the learned APP placed reliance on the judgment of the Supreme
Court in Jarnail Singh v. State of Haryana, (2013) 7 SCC 263; and
of this Court in Raju Yadav v. State of NCT of Delhi, 2023 SCC
OnLine Del 2782. He submits that therefore, the perceived consent
of the victim, was immaterial to find the respondent guilty of the
offence charged.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT:
15. On the other hand, Ms. Rakhi Dubey, the learned Amicus
Curiae appointed for the respondent, submits that the victim in the
present case, that is, PW-2 is not reliable and there are glaring
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inconsistencies in her statements recorded under Sections 161 and 164
of the Cr.P.C. and her deposition before the Court. She submits that it
is inconceivable that the respondent could have taken away the victim
without any other person in the house noticing it. She further submits
that, in fact, the victim went with the respondent on her own and it is
only when she was found by the parents as missing, a concocted story
of rape was made involving the respondent.
16. As regards the age of the victim, the learned counsel for the
respondent submits that the victim PW-2 in her statement had stated
that her brother is younger to her and is aged about 18 years. This
clearly shows that the victim was a major on the date of the alleged
offence. Even her Ossification Test Report opined her age to be
between 16 and 18 years. She further submits that, in such cases, the
benefit of doubt has to be given to the accused and, therefore, the age
of the victim has to be taken more than 18 years on the date of the
offence. In support, she places reliance on the judgments of this Court
in Shweta Gulati & Anr. v. The State Govt. of NCT of Delhi , 2018
SCC OnLine Del 10448; State v. Basir Ahmad , 2023 SCC OnLine
Del 5852; Court On Its Own Motion v. State of NCT of Delhi,
2024:DHC:4915-DB; and of the Supreme Court in Rajak Mohammad
v. The State of Himachal Pradesh , 2018 SCC OnLine SC 1222.
ANALYSIS AND FINDINGS
17. We have considered the submissions made by the learned
counsels for the parties and have also perused the records.
18. In the present appeal, two questions arise for consideration:
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(a) whether the prosecution has been able to prove beyond
reasonable doubt that the respondent had abducted the victim
against her will and, thereafter, committed rape upon her; and
(b) whether the victim, on the date of the alleged offence was a
minor, thereby making her consent for the sexual intercourse to
be irrelevant.
19. As far as the factum of sexual intercourse is concerned, the
learned Trial Court, based on the statement of PW-6 Dr. Supriya
Prashar and MLC (Ex. PW 6/A), has found the same to be proved and
had returned a finding that sexual intercourse had taken place. PW-6-
Dr. Supriya Prashar, who examined the victim on 26.06.2013, had
found the hymen to be torn with congestion and tenderness. She also
reported that there was a small tear at upper junction of labia minora.
We, therefore, find no reason to differ from the learned Trial Court on
this finding.
20. The primary issue to be determined by this Court is whether the
prosecution has been able to establish that the said sexual intercourse
was without the consent of the victim. In this regard, PW-2, the victim
in her statement states that while she was sleeping along with her
siblings on the ground floor of her jhuggi and her parents were
sleeping on the upper floor, she heard a knocking at the door. She
states that she thought that her father might have come so she opened
the door. She states that the respondent put his hand on her mouth and
took her to his house where, after threatening her that he would kill
her, he removed her clothes and raped her. She then came out of the
house of the respondent and in the gali outside, she met her parents
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and told them about the entire incident.
21. Interestingly, none of the siblings heard any noise of knocking
on the door on the night of the alleged incident or any sound of the
victim while she was allegedly being taken away by force. The
distance between the jhuggi of the victim and jhuggi of the respondent
is stated to be about 20 steps. It is stated to be surrounded by other
jhuggis where people live, however, again nobody saw the respondent
taking away the victim by force. Her being missing from the house
came to the fore only when her sister PW-5, woke up at about
midnight and found her missing and went to the parents to look for
her.
22. She also states that the respondent was not known to her prior to
the incident, which is contradictory to her statements recorded under
Section 161 of the Cr.P.C (Ex.PW 2/A), her statement before the
Magistrate under Section 164 of the Cr.P.C (Ex. PW 2/B).
23. Apart from the above, there are material contradictions in the
statements of the victim recorded under Section 161 of the Cr.P.C
(Ex.PW 2/A), her statement before the Magistrate under Section 164
of the Cr.P.C (Ex. PW 2/B), and her statement before the learned
Trial Court. In her statement under Section 161 of the Cr.P.C., she
states that while she was sleeping with her siblings on the ground floor
of the jhuggi, she opened the door of the jhuggi on hearing a knock.
She saw the respondent standing there. The respondent asked her to
accompany him. She asked for the reason for the same to which the
respondent answered that he wishes to speak with her. He, thereafter,
took her to his own jhuggi and closed the door from inside and
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threatened her that she should do what he asked her to do otherwise he
would kill her. He, thereafter, raped her. She even shouted for help
whereafter he left her. She wore her clothes, opened the door and ran
towards her own house when she found the parents looking for her.
Therefore, in this statement, there is no mention of the respondent
forcefully taking the victim to his own house by putting his hand on
the mouth of the victim. There is also a mention that it is the
respondent who had closed the door of his own jhuggi after taking the
victim there from inside and it was the victim herself who opened the
door after the respondent had left her after committing the rape. The
two statements are also contradictory on whether the victim knew the
respondent from before, with the statement under Section 161 of the
Cr.P.C. suggesting that the victim knew the respondent, while in the
statement before the learned Trial Court, the victim denied it.
24. The said statements have material contradictions to the
statement of the victim recorded under Section 164 of the Cr.P.C. as
well, wherein to a question put by the learned Magistrate as to whether
she raised any alarm or not, she states that she shouted for help,
however, no one was there and someone had locked the jhuggi from
outside. She further stated that the lock was opened by a friend of the
respondent, however, she could not see him. She stated that after
raping her, the respondent left her in the gali and ran away. She does
not state that she met her parents in the gali, but states that she
narrated the incident to them after coming home in the night itself.
The statement also suggests that the victim knew the respondent from
before.
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25. While it is settled law that conviction can be based on the
statement of the prosecutrix alone, such statement must be found to be
reliable and trustworthy. Reliance is placed on a decision in State
(GNCT of Delhi) v. Vipin alias Lalla , 2025 SCC OnLine SC 78
wherein the Supreme Court, in the context of basing the conviction
solely on the testimony of the alleged victim, observed as under:
―10. Although it is absolutely true that in the
case of rape, conviction can be made on the
sole testimony of the prosecutrix as her
evidence is in the nature of an injured witness
which is given a very high value by the Courts.
But nevertheless when a person can be
convicted on the testimony of a single witness
the Courts are bound to be very careful in
examining such a witness and thus the
testimony of such a witness must inspire
confidence of the Court…..‖
26. Similarly, Supreme Court in Rai Sandeep @ Deepu v. State
(NCT of Delhi) , (2012) 8 SCC 21, has observed as under:
―15. In our considered opinion, the ‗sterling
witness‘ should be of a very high quality and
caliber whose version should therefore, be
unassailable. The Court considering the
version of such witness should be in a position
to accept it for its face value without any
hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court. It
should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version
of such a witness. The witness should be in a
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position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room
for any doubt as to the factum of the
occurrence, the persons involved, as well as,
the sequence of it. Such a version should have
co-relation with each and everyone of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the
version of such a witness qualifies the above
test as well as all other similar such tests to be
applied, it can be held that such a witness can
be called as a ‗sterling witness‘ whose version
can be accepted by the Court without any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects should
match the said version in material particulars
in order to enable the Court trying the offence
to rely on the core version to sieve the other
supporting materials for holding the offender
guilty of the charge alleged.‖
27. Tested on the anvil of the aforesaid principles, in the present
case, we do not find the statement of the victim to be of such sterling
quality which alone would be sufficient, in itself, to sustain a
conviction.
28. As far as PW-1 Smt. Chhaya, the mother of the victim; PW-3
Sh. Om Parkash, father of the victim; PW-5 Seema, the elder step
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sister of the victim, are concerned, they had not seen the incident and,
as noted hereinabove, they went looking for the victim as PW-5 found
her to be missing. They, thereafter, found the victim coming from the
house of the respondent. It is quite possible that the victim, seeing her
parents while coming from the house of the respondent, concocted the
story of being raped by him. Their statements therefore can only
corroborate that the victim was coming from the house of the
respondent in the middle of the night, however, are insufficient to
hold, beyond reasonable doubt, that the respondent had taken the
victim to his house forcibly or that the respondent had a sexual
intercourse with her without her consent.
29. As far as the injuries on the victim are concerned, PW-6 Dr.
Supriya Prashar explains these injuries as under:
―On examination, she had multiple scratch
mark over anterior aspect of base of neck,
swelling over abrasion on right elbow, small
abrasion over anterior aspect of lower thigh
near right knee.‖
30. The respondent had stated that, on seeing the victim coming
back from the house of the respondent, the parents of the victim took
her and gave her beatings. The injuries which have been mentioned
are more consistent with this defence, than with the case of the
prosecution as showing a forceful sexual intercourse and these injuries
being marks of resistance.
31. In view of the above, we find that the prosecution has been
unable to prove beyond reasonable doubt that there was a forceful
sexual intercourse committed by the respondent on the victim. The
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inconsistencies and surrounding circumstances create a reasonable
doubt, and the benefit thereof must flow to the respondent.
32. The law governing appeals against acquittal is well settled. The
appellate court though can re-appreciate the evidence, it shall interfere
only when the findings of the Trial Court are perverse, manifestly
illegal, or grossly unjust. The Supreme Court in Ghurey Lal v. State
of U.P. , (2008) 10 SCC 450, observed that the presumption of
innocence in favour of the accused stands reinforced by an order of
acquittal, and unless the conclusions drawn by the Trial Court are
perverse, manifestly illegal, or wholly unreasonable, the appellate
court ought not to substitute its own view merely because another
view is possible. The relevant extracts from the said judgment are as
under:-
―69. The following principles emerge from the
cases above:
1. The appellate court may review the
evidence in appeals against acquittal
under Sections 378 and 386 of the
Criminal Procedure Code, 1973. Its
power of reviewing evidence is
wide and the appellate court can re-
appreciate the entire evidence on
record. It can review the trial court's
conclusion with respect to both
facts and law.
2. The accused is presumed innocent
until proven guilty. The accused
possessed this presumption when he
was before the trial court. The trial
court's acquittal bolsters the
presumption that he is innocent.
3. Due or proper weight and
consideration must be given to the trial
court's decision. This is especially
true when a witness' credibility is at
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issue. It is not enough for the High
Court to take a different view of the
evidence. There must also be substantial
and compelling reasons for holding that
the trial court was wrong.
70. In light of the above, the High Court and
other appellate courts should follow the well-
settled principles crystallised by number of
judgments if it is going to overrule or
otherwise disturb the trial court's acquittal:
1. The appellate court may only
overrule or otherwise disturb the trial
court's acquittal if it has ―very
substantial and compelling reasons‖ for
doing so.
A number of instances arise in which the
appellate court would have ―very
substantial and compelling reasons‖
to discard the trial court's decision.
―Very substantial and compelling
reasons‖ exist when:
(i) The trial court's conclusion with
regard to the facts is palpably wrong;
(ii) The trial court's decision was
based on an erroneous view of law;
(iii) The trial court's judgment is
likely to result in ―grave miscarriage of
justice‖;
(iv) The entire approach of the trial
court in dealing with the evidence was
patently illegal;
(v) The trial court's judgment was
manifestly unjust and unreasonable;
(vi) The trial court has ignored the
evidence or misread the material
evidence or has ignored material
documents like dying declarations/report
of the ballistic expert, etc.
(vii) This list is intended to be
illustrative, not exhaustive.
2. The appellate court must always give
proper weight and consideration to the
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findings of the trial court.
3. If two reasonable views can be
reached—one that leads to acquittal, the
other to conviction—the High
Courts/appellate courts must rule in
favour of the accused.‖
33. Similarly, in Chandrappa & Ors. v. State of Karnataka , (2007)
4 SCC 415, the Supreme Court held that in cases of acquittal, there is
a double presumption in favour of the accused. The relevant portion of
the judgment reads as under:-
―16. It cannot, however, be forgotten that in
case of acquittal, there is a double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person
should be presumed to be innocent unless he is
proved to be guilty by a competent court of
law. Secondly, the accused having secured an
acquittal, the presumption of his innocence is
certainly not weakened but reinforced,
reaffirmed and strengthened by the trial
court.‖
34. Upon a holistic appreciation of the evidence, we find that the
view taken by the learned Trial Court is a plausible and reasonable
one based on the material on record. The prosecution has failed to
prove the guilt of the respondent beyond reasonable doubt. The
findings of the learned Trial Court do not suffer from perversity or
illegality warranting interference.
35. Coming to the second question for consideration, that is, the age
of the victim, we would note that the consent of the victim would
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become irrelevant in case she is held to be a minor on the date of the
offence.
36. In Jarnail Singh (supra), the Supreme Court held that the
procedure for the determination of the age as prescribed in Rule 12(3)
of the Juvenile Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as the “Rules”) is applicable not only to a child
in conflict with law but also to a child who is a victim of crime.
37. It is admitted that there are no primary documents available in
terms of Rule 12(3)(a) of the Rules to determine the age of the victim.
The age of the victim was, therefore, sought to be determined by way
of an Ossification Test. The Ossification Test opined the age of the
victim to be between 16 and 18 years as on the date of the incident.
38. The judgment of Raju Yadav (supra) by a learned Single Judge
of this Court, which had held that for determining the age of a child
victim under the POCSO Act, the inclination of the Court should be
towards considering the lower side on the margin of error, was later
considered by the Division Bench of this Court in Court On Its Own
Motion (supra), wherein, after detailed analysis of various judgments,
the Court held as under:
―22. In the case in hand also, such estimation
age is given as 16-18 years by the concerned
Medical Board. The issue is whether age of the
victim should be taken on the lower side or on
the upper side of such range. What ought to be
the approach of the Court – whether to
consider the age of the child victim as 16 years
or as 18 years? And secondly and more
importantly, whether any further ―margin of
error‖ is also to be applied on either side,
thereby making the age range, in context of
present situation, from ‗16 to 18 years‘ to ‗14
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to 20 years.‘
23. We cannot be oblivious of the fact that we
are following adversarial system of law where
the presumption of innocence is indispensible
philosophy. Though in any criminal trial, the
endeavour is to reach the truth, in adversarial
system, the judge generally acts like an umpire
who watches whether the prosecution has been
able to prove the case beyond reasonable
doubt or not. Since the adversarial system in
India is based on the innocence of the
accused‘, the burden of proof, generally, falls
on prosecution. Our criminal system
prescribes that a case against any accused has
to be proved beyond doubt. Meaning thereby,
if there is an element of doubt, such benefit has
to go to the accused.‖
39. This Court, in reaching the above conclusion, also placed
reliance on decision of the earlier Division Bench of this Court in
Basir Ahmad (supra), wherein it had been held as under:
―13. The question which thus, arises is
whether the lower or the upper age
recommended in the ossification test should be
adopted to be the age of the prosecutrix. If
benefit of doubt has to be given to the accused
under all circumstances, then, it is the higher
limit which has to be taken and benefit
extended as has been held in the cases of
Triveniben Vs. State of Gujarat (1989) 1 SCC
678 and Maru Ram Vs. Union of India (1981)
1 SCC 107. So being the case, we may
consider the range of age of the prosecutrix as
given in the ossification test to be 17 to 19
years. Applying the margin of error principle
of two years on either side, the age of the
prosecutrix could be anything between 15 to
21 years. Even if the margin of error is not on
the higher side, the upper limit of the age has
been estimated by the ossification test as 19
years. Giving the benefit, the age of the
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prosecutrix has to be held as 19 years. Similar
conclusion was taken by the Court in the case
of Shweta Gulati vs. State of NCT of Delhi
2018 SCC OnLine Del 10448. We thus, find
that learned ASJ has rightly held the
prosecutrix to be major at the time of incident.
We find no infirmity in the findings in respect
of the age of the prosecutrix.‖
40. Reliance was further placed on the judgment of the Supreme
Court in Rajak Mohammad (supra), wherein the Supreme Court had
reiterated that the benefit of doubt must go in favour of the accused as
the Ossification Test may not give an accurate determination of the
age of the victim. We quote from the judgment as under:
―9. While it is correct that the age determined
on the basis of a radiological examination may
not be 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.‖
41. This Court in Court On Its Own Motion (supra), further
answered the reference made to it as under:
―46. As an upshot of our foregoing discussion,
the Reference is answered as under:-
(i) Whether in POCSO cases, the Court is
required to consider the lower side of the age
estimation report, or the upper side of the age
estimation report of a victim in cases where
the age of the victim is proved through bone
age ossification test?
Ans: In such cases of sexual assault, wherever,
the court is called upon to determine the age
of victim based on‘bone age ossification
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report‘, the upper age given in ‗reference
range‟ be considered as age of the victim.
(ii) Whether the principle of „margin of error‟
is to be applicable or not in cases under the
POCSO Act where the age of a victim is to be
proved through bone age ossification test.
Ans: Yes. The margin of error of two years is
further required to be applied.‖
42. Though the learned APP submits that the above judgment
would require a re-consideration, we see no ground for doing the same
as we find ourselves in full agreement with it. The basic foundation of
criminal law is that unless the statute carves out an exception, the
benefit of doubt must go in favour of the accused.
43. In POCSO Act, a presumption against the accused is created in
Sections 29 and 30 thereof, which read as under:
― 29. Presumption as to certain offences.—
Where a person is prosecuted for committing
or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that
such person has committed or abetted or
attempted to commit the offence, as the case
may be unless the contrary is proved.
30. Presumption of culpable mental state.—
(1) In any prosecution for any offence under
this Act which requires a culpable mental state
on the part of the accused, the Special Court
shall presume the existence of such mental
state but it shall be a defence for the accused
to prove the fact that he had no such mental
state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is
said to be proved only when the Special Court
believes it to exist beyond reasonable doubt
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and not merely when its existence is
established by a preponderance of probability.
Explanation.—In this section, ―culpable
mental state‖ includes intention, motive,
knowledge of a fact and the belief in, or reason
to believe, a fact.‖
44. The above provisions would apply only where the basic
foundational facts are proved, including that the victim was a minor
on the date of the offence. The presumption in Sections 29 and 30
cannot be invoked against the accused for determining whether the
victim was a minor on the date of the offence.
45. In the present case, the Ossification Test conducted on
08.07.2013, opined the age of the victim to be between 16 and 18
years at the time of the incident. Giving the benefit of doubt to the
accused/respondent, therefore, her age would have to be taken at least
18 years thereby making her a major on the date of the offence. In
view of our earlier finding that the prosecution has been unable to
prove beyond reasonable doubt that the sexual intercourse had taken
place without the consent of the victim, in our view, the learned Trial
Court had committed no error in acquitting the respondent of the
offences charged.
46. In view of the above, we find no merit in the present appeal.
The same stands dismissed.
47. The bail bonds and the surety of the respondent are hereby
discharged.
48. A copy of this judgment be communicated to the learned Trial
Court and the concerned Jail Superintendent for information and
compliance.
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49. As Ms.Rakhi Dubey, learned Amicus Curiae , has assisted us in
this appeal, she may be paid fees as per the applicable Fee Schedule of
the Delhi High Court Legal Services Committee.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
APRIL 30, 2026/ ns/pb
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