Mohd. Quasim vs State

Court
Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of reserving Judgment: 30 April, 2026
th
Date of decision: 11 May, 2026
IN THE MATTER OF:
+ CRL.A. 654/2009
MOHD. QUASIM .....Appellant
Through: Mr.Samar Singh Kachwaha, Mr.Arsh
Ranpal, Ms. Kavita Vinayak and
Mr.Yash Dadriwal, Advs.
versus

STATE (NCT OF DELHI) .....Respondent
Through: Mr. Nawal Kishore Jha, APP for the
State with ASI Inder Singh, PS Farsh
Bazar.
Ms. Astha, Adv. DHCLSC with Ms.
Megha Singh for prosecutrix.

CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
VIMAL KUMAR YADAV, J.
1. Fragmented, stratified and deeply divided Indian society across
all the classes left no room practically for the young lovers to choose
their partners. If the prescribed barriers are to be breach then, the
consequences have been so severe that they have had to pay with their
lives at times. In such a deeply divided society, which has not only
divided the lives, religion, caste, region or language but even inter-se
divisions have been found within a particular social group. In such
circumstances, an inter-religious alliance was no less than a sin against
such a scenario, where an inter-religious alliance was met with the
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CRL.A. 654/2009 Page 1 of 14

Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

obvious resistance so much so that one of the partners, that is the
prosecutrix herein, who had taken an initial stand of aligning with the
Appellant in every aspect from voluntarily accompanying him, to
marrying him, having the marriage registered and living with him for
about two months, turned tables and shifted the entire blame on the
Appellant when she came to depose before the Court, contrary to what
she has stated in her statement under Section 161 and 164 of the
Criminal Procedure Code, 1973 (Cr.P.C.).
2. The Appellant has primarily assailed the Impugned Judgement
dated 23.05.2008 on two counts that the prosecutrix was mature
enough and major, having reached the age of consent, as per the pre-
amendment provisions and that she had herself of her own violition
accompanied the Appellant, took a TSR to reach to a railway station
and from there boarded a train to the hometown of the Appellant
somewhere in West Bengal and enroute stayed for about 3 ½ hours at
Aligarh railway station. On reaching there, she voluntarily opted to
marry with the Appellant and got her marriage registered under Special
Marriage Act, 1954 prior to the police swooping in on the Appellant
and the prosecutrix. Both of them were brought to Delhi where case
FIR No.169/2004 was registered on the complaint of the father of the
prosecutrix. Police recorded the statement, inter-alia of the prosecutrix
under Section 161 Cr.P.C., and got her and the Appellant medically
examined etc. To make things sure, statement of the prosecutrix under
Section 164 Cr.P.C. was also recorded. And she was sent to the Nari
Niketan (Home for women) run by the Government of N.C.T of Delhi.
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CRL.A. 654/2009 Page 2 of 14

Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

With these contentions, the counsel for the Appellant has assailed
Impugned Judgment and in order to buttress and strengthen his
arguments he has placed reliance on the following judgments:-

i. Rahul Dev v. State , 2014 SCC OnLine Del 3930;
ii. Shweta Gulati v. The State Govt. of NCT of Delhi , 2018
SCC OnLine Del 10448;
iii. Jaya Mala v. Home Secretary Govt. of J & K , (1982) 2
SCC 538;
iv. State of NCT of Delhi v. Shiva , 2012 SCC OnLine Del
1622;
v. Avdesh Kumar v. State (Govt. of NCT of Delhi) , 2015
SCC Online Del 10666;
vi. Sunil v. State of Haryana , (2010)1 SCC 742;
vii. Tilku v. State of Uttarakhand , 2025 SCC OnLine SC
353;
viii. Mohd. Imran Khan v. State , 2009 SCC OnLine Del
4021;
ix. Nirmal Premkumar v. State , (2024)20 SCC 293;
x. Siddaruda v. State of Karnataka , 2023 SCC OnLine SC
585; and

xi. State v. Rahdey Shyam , 2014 SCC OnLine Del 6812
3. However, appreciating the contentions aforesaid it will be apt to
have a brief idea of the facts. On 16.05.04 one Kanhiya Lal
(Complainant) went to police station Fresh Bazar and disclosed to the
duty officer about his missing daughter (hereinafter referred as
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

prosecutrix) since noon on that day. The complainant expressed his
suspicion/ doubt regarding the involvement of one Qasim (accused) in
the crime in question. Finding it prima facie a cognizable offence, duty
officer registered FIR no. 169/2004 u/s 363 IPC. Investigation was
marked to SI Vinay Yadav. The letter procured a photograph of
prosecutrix and flashed message the missing person i.e. the prosecutrix,
all over India.
4. Learned APP while countering the contentions raised on behalf
of the Appellant came up with the plea that the prosecutrix had not
reached the age of consent therefore, her consent was immaterial and
the act of taking away / enticing the prosecutrix by the Appellant
amounts to offence under Section 363 / 366 Indian Penal Code, IPC,
under which the Appellant have been convicted in addition to the
offence under Section 376 IPC inasmuch as the prosecutrix was
subjected to be raped during her stay of about 02 months with the
Appellant.
5. Learned APP has contended that the substantive statement before
the Court only falls into the scope and ambit of evidence and the
evidence is heavily loaded against the Appellant. As such, it is sought
that the Impugned Judgment and sentence does not required to be
disturbed and should maintained.
6. Determination of age is a very vital aspect of the instant case or
so to say holds the key towards its outcome. With regards to the aspect
of age, the guiding principle is under Section 94 of the Juvenile Justice
Act, 2015, which is almost akin to Rule 12 of Juvenile Justice Rules,
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

2007 which provides as under:-
“Section 94. Presumption and determination of age.
(1) Where, it is obvious to the Committee or the Board, based
on the appearance of the person brought before it under any of
the provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or the
Board shall record such observation stating the age of the child
as nearly as may be and proceed with the inquiry under section
14 or section 36, as the case may be, without waiting for further
confirmation of the 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;
(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:
(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.”

7. However, in a recent judgment Hon’ble Supreme Court has fallen
back on Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 qua age determination in K.P. Kirankumar @
Kiran vs. State by Peenya Police Crl. Appeal No.5614/2025 arising out
of SLP (Crl.) No.11287/2025 dated 19.12.2025, the observation made
in Jarnail Singh v. State of Haryana , 2013 SCC OnLine SC 507:
“23. Even though Rule 12 is strictly applicable only to determine
the age of a child in conflict with law, we are of the view that the
aforesaid statutory provision should be the basis for determining
age, even of a child who is a victim of crime. For, in our view,
there is hardly any difference insofar as the issue of minority is
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

concerned, between a child in conflict with law, and a child who
is a victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW, PW 6. The
manner of determining age conclusively has been expressed in
sub-rule (3) of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained by adopting the first
available basis out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect over an
option expressed in a subsequent clause. The highest rated
option available would conclusively determine the age of a
minor. In the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the child concerned is the highest rated option. In
case, the said certificate is available, no other evidence can be
relied upon. Only in the absence of the said certificate, Rule
12(3) envisages consideration of the date of birth entered in the
school first attended by the child. In case such an entry of date
of birth is available, the date of birth depicted therein is liable to
be treated as final and conclusive, and no other material is to be
relied upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a corporation
or a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to
be taken into consideration for determining the age of the child
concerned, as the said certificate would conclusively determine
the age of the child. It is only in the absence of any of the
aforesaid, that Rule 12(3) postulates the determination of age of
the child concerned, on the basis of medical opinion.”

8. As can be seen from the aforementioned judgment that the first
document which is of utmost importance is the certificate issued by the
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Education Board with regard to the 10 standard qualification having
the age also. In the absence of the same, the other document which
becomes relevant is the date of birth certificate issued by a Municipal
body and in the absence of the same, as a last resort the ossification test
has been prescribed to determine the age.
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9. In the instant case, the child has not studied up to the 10
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

th
standard, therefore, there is no scope of having that 10 standard board
certificate. This brings us to the second option of having a birth
certificate from any municipal body, which too is not there. With
regards to the documents, only the school leaving certificate and other
relevant entries are there which have been relied upon by the
prosecution. In this context, the question would be as to whether these
entries/documents are to be looked into or not inasmuch as it was the
contention of the learned APP that there was no reason for the parents
of the prosecutrix to give any other date of birth except the one which
was the actual one. They could not have foreseen that a situation would
emerge sometime in the future where the date of birth/age
determination would become relevant and important. In these
circumstances, the documents like school leaving certificate and similar
other documents for date of birth can be looked into.
10. The date of birth certificate has not been not proved in terms of
chapter V of the Evidence Act, 1872 dealing with documentary
evidence, but if the school certificate is taken into consideration, even
then no conclusive proof of age is there. In Birad Mal Singhvi v.
Anand Purohit , 1988 Supp SCC 604: 1988 SCC OnLine SC 449
“ 14. ... The date of birth mentioned in the scholars' register
has no evidentiary value unless the person who made the
entry or who gave the date of birth is examined. The entry
contained in the admission form or in the scholar's register
must be shown to be made on the basis of information given
by the parents or a person having special knowledge about
the date of birth of the person concerned. If the entry in the
scholar's register regarding date of birth is made on the basis
of information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by someone
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

else who had no special means of knowledge of the date of
birth, such an entry will have no evidentiary value.”

11. As per that, in the instant case, the school leaving certificate (Ex.
PW-6/D) clearly reflects that the date of birth of the prosecutrix was
10.01.1990 and as per that, on the relevant date when the accused
enticed her and took her away, she was a minor. Therefore, presuming
what has been contended by the learned counsel for the Appellant, that
the prosecutrix accompanied the Appellant of her own, the same
becomes irrelevant. In this context, learned counsel for the Appellant
had relied upon a judgment in Sunil v. State of Haryana, (2010) 1 SCC
742 .
“ 25. The prosecution also failed to produce any admission
form of the school which would have been primary evidence
regarding the age of the prosecutrix. The school leaving
certificate produced by the prosecution was also procured on
12-9-1996, six days after the incident and three days after the
arrest of the appellant. As per that certificate also, she joined
the school in the middle of the session and left the school in
the middle of the session. The attendance in the school of 100
days is also not reliable. The prosecutrix was admitted in the
school by Ashok Kumar, her brother. The said Ashok Kumar
was not examined. The alleged school leaving certificate on
the basis of which the age was entered in the school was not
produced.

26. Bishan, PW 8, the father of the prosecutrix has also not
been able to give correct date of birth of the prosecutrix. In
his statement he clearly stated that he is giving an
approximate date without any basis or record. In a criminal
case, the conviction of the appellant cannot be based on an
approximate date which is not supported by any record. It
would be quite unsafe to base conviction on an approximate
date.”
12. Additionally, it has been further asserted on behalf of the
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

Appellant that why not fall back on the report of the ossification test in
the context of determination of age, when the statute clearly provides
for it and for that matter the prosecutrix had also gone for the
ossification test. The result of the ossification test Ex. PW-11/A clearly
reflects that the age of the prosecutrix was between 14 to 16 years old
at the relevant time and given the concept of margin of error which
provides that it could be plus(+) minus(-) 02 years as such, the age of
the prosecutrix could be in the range of 12 to 18. It has been asserted
that it is a settled proposition of law that the ossification test, with the
margin of error, is to be read in favour of the accused/Appellant herein.
According to the same, the age of the prosecutrix at the relevant time
becomes 18 years which is far beyond the age of consent in the pre
amended era when it was 16 years in respect of offence of rape. As
such, it has been asserted on behalf of the Appellant that the evidence
in its entirety clearly reflects that the prosecutrix was neither enticed
nor persuaded to go with the Appellant rather she herself took the
decision to accompany the Appellant as she was in love with him. In
this context, learned counsel for the Appellant pointed out towards the
letters written by the prosecutrix to the Appellant, which are Ex. PW-
1/DB, Ex. PW-3/D1, Ex. DW/D2, Ex. DW3/D3, Ex. PW-4/B, Ex. PW-
4/D, PW-3/D, Ex. PW-3/D7, Ex. PW-3/D8, Ex. PW-3/D9.
13. It has been further contended that on behalf of the Appellant that
the prosecutrix being a major having the legal sanction of exercising
the discretion chose to marry the Appellant, as can be seen from the
fact that application for marriage was moved before the competent
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CRL.A. 654/2009 Page 9 of 14

Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

authority under the Special Marriage Act, on 07.06.2004 and the
marriage took place on 09.07.2004. The certificate dated 09.07.2004
mark PW-1/A to C clearly reflects that it was all done by the
prosecutrix of her own without there being any force, coercion or
pressure.
14. The prosecutrix was completely aligned with the Appellant as
long as she was with him and was there in the Nari Niketan, which can
be inferred from the fact that in her statements under Section 161 and
164 Cr.P.C. she has not complained against the Appellant in any
manner. The MLC Ex. PW-7/B is a further reflection of the prosecutrix
having consensually moved out with the Appellant and married him,
inasmuch as she had deliberately refused for her internal examination
otherwise, she would have definitely gone for it to facilitate the
collection of evidence to nail down the Appellant. Incidentally, the
MLC also reflects that she was suffering from a medical condition
kown as amenorrhea for at least two months which indicates, if not
directly but indirectly that she could have been pregnant as pregnancy
is known to be one of the most common causes of this condition.
15. It is correct that the statement made before the court during the
trial stage is taken to be the substantive statement/evidence which is
relevant for consideration. However, statement made ‘On Oath’ before
a magistrate cannot be completely ignored either. It is the
comprehensive justice which should be the aim and object of the
judicial process. In the observation made by Hon’ble Supreme Court
can be looked for guidance in P.Yuvaprakash v. State of T.N., (2024)
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CRL.A. 654/2009 Page 10 of 14

Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

17 SCC 684:
“ 34. The prosecution did not even cross-examine this witness.
Having regard to these overall factors, the Court is of the opinion
that M's statement under Section 164CrPC contained a truthful
narration of the events. This, in other words, meant that there was
no penetrative sexual assault on her. Therefore, the provisions of
the Pocso Act will not be applicable in this case. The impugned
judgment [P. Yuvaprakash v. State, Criminal Appeal No. 400 of
2016 sub nom N. Rasu v. State, 2016 SCC OnLine Mad 32189]
set aside the charge under Section 366IPC against the appellant.
The charges against him, under Section 6 of the Pocso Act as well
as Section 10 of the Prohibition of Child Marriage Act, cannot be
sustained; the findings of the courts below i.e. conviction and
sentences imposed are, therefore, set aside.”

16. The conduct of the prosecutrix also reflects that her so called
substantive statement before the Court during the trial was under some
sort of social or parental pressure and certain aspects are there which
could not be explained by her during cross-examination. The
prosecutrix had numerous opportunities to draw the attention of not
only the public persons but the Government Authorities as well, had
she been forcefully taken by the Appellant or was enticed by him. She
had travelled for more than 1500 kms in public transport right from the
TSR to a bus, to a train to reach to the native village of the Appellant in
West Bengal. It is nearly impossible to believe that the prosecutrix did
not have even a single opportunity to raise alarm and attract the
attention of the public police or the Government officials at the bus
station, railway station or even during the travel. It is a matter of
common knowledge that every train has some RPF personnels who
keeps patrolling inside the train during its journey, all the stations have
one or the other RPF Police post and in any case, given the huge
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

population of this country, it is nearly impossible to find anyone
travelling in isolation in any in the public transport. It is not the case of
the prosecutrix that she was threatened with any weapon which forced
her to keep quiet, therefore, in such circumstances, had she been taken
against her will, she had all the opportunities to raise alarm. Her silence
in such circumstances only indicates that she was an ally of the
Appellant and accompanied him by her own choice, will and desire.
17. The copies of the letters purportedly written by prosecutrix are
Ex. PW-1/DB, Ex. PW-3/D1, Ex. DW/D2, Ex. DW3/D3, Ex. PW-4/B,
Ex. PW-4/D, Ex. PW-3/D, Ex. PW-3/D7, Ex. PW-3/D8, Ex. PW-3/D9
which put a stamp on this, notwithstanding, the fact that the prosecutrix
has tried to wriggle out of the labyrinth of letters by saying that she was
forced to write these letters. It is against common sense that a person
who has got a marriage certificate would force the prosecutrix to write
such letters as if he was some kind of preemptive measure the contents
of letters further belie any such action or situation on the part of the
Appellant.
18. Thus, what emerges on record is that the prosecutrix had herself,
of her own volition not only accompanied the Appellant but, got
married under Special Marriage Act. The marriage certificate is part of
record. So far as, the age of the prosecutrix is concerned, with the
margin of error it can be taken as 18 years i.e. the age when a female
can marry and can also have consensual relationship with anyone of her
choice. The statement made before the Court is not believable and
seems to be stemming out of social and family pressure. She had
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

herself refused her internal body examination and was suspected to be
pregnant also. She had not only lived with the Appellant for months
together but had travelled with him in various public transports and
covered distance of not less than 1500 KM. Thus, the prosecutrix had
every opportunity to protest and raise attention of the public and the
police authorities, if she was being taken by the Appellant under some
kind of force or was otherwise enamoured and enticed, but not a
willing party.
19. Additionally, as regard, the offence of rape, Exception 2 to
Section 375 IPC comes into play which clarifies that sexual intercourse
or sexual act by a man with his own wife and the wife being not under
15 years of age is not an offence of rape. Thus, on the parameters of the
statute, she being wife of the Appellant, even if she was less than 18
years of age, cannot be treated to have been raped by the Appellant.
She has herself given her age as 18 years in the statement recorded
under Section 164 Cr.P.C. she has also stated the same age in the MLC
Ex. PW-7/B too. In this context, reference can be made to the
judgments in: State vs Rahdey Shyam @ Radhey 2014 SCC OnLine
Del 6812 & Siddaruda @ Karna vs State of Karnataka 2023 SCC
OnLine SC 585.

20. In any case the age of the prosecutrix has to be taken as 18 years
and therefore on account of this fact also the Appellant cannot be held
responsible.
21. As such considering the entire gamut of facts and circumstances,
as discussed herein before, it is evident that the Appellant cannot be
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Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42

held responsible for any of the offences with which he has been
charged.
22. Accordingly, the appeal is accepted and the Appellant stands
acquitted. Copy of the judgment be transmitted to the Trial Court and
the prison authorities for information and compliance.
23. Bail bond stands discharged and applications, if any, stands
disposed of accordingly.




VIMAL KUMAR YADAV, J
MAY 11, 2026/ hk/ps/tng
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CRL.A. 654/2009 Page 14 of 14

Signed By:ASHOK
KUMAR CHOUHAN
Signing Date:19.05.2026
13:31:42