Mohd. Mujahid vs The State (Govt. Of Nct) Delhi & Anr.

IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 11.12.2025
Judgment pronounced on: 16.03.2026
+ CRL.A. 1436/2025 & CRL.M.(BAIL) 2101/2025
MOHD. MUJAHID .....Appellant
versus
THE STATE (GOVT. OF NCT) DELHI
& ANR. ..... Respondents
Advocates who appeared in this case:
For the Appellant : Mr. Adit S. Pujari, Adv. (DHCSLC) with
Mr. Manvender Singh Shekhawat and Mr.
Harshwardhan Puskin Sharma, Advs.
For the Respondent : Mr. Sunil Kumar Gautam, APP for the
State with Insp. Satbir Singh, PS Jaitpur
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
CRL.A. 1436/2025
1. The present appeal is filed challenging the judgment dated
23.07.2025 (hereafter ‘ impugned judgment ’) and order on sentence
dated 31.07.2025 (hereafter ‘ impugned order on sentence ’), passed
by the learned Additional Sessions Judge (‘ ASJ ’), Saket Courts, Delhi
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 1 of 15

in Sessions Case No. 352/2019 arising out of FIR No. 111/2019
(‘ FIR ’), registered at Police Station Jaitpur.
2. By the impugned judgment, the learned ASJ convicted the
appellant for the offences under Section 377 of the Indian Penal Code,
1860 (‘ IPC ’) and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (‘ POCSO Act ’).
3. By the impugned order on sentence, the appellant was
sentenced to undergo rigorous imprisonment for a period of 15 years
for the offence under Section 6 of the POCSO Act, and to pay a fine of
₹20,000/-, and in default of payment of fine, to undergo simple
imprisonment for a period of two months. Further, for the offence
under Section 377 of the IPC, the appellant was sentenced to undergo
rigorous imprisonment for a period of 10 years, and to pay a fine of
₹10,000/-, and in default of payment of fine, to undergo simple
imprisonment for a period of one month.
4. The brief facts of the case are as follows:
a. On 05.06.2019, the FIR was registered at Police Station Jait Pur
for offences under Section 377 of the IPC and Section 6 of the
POCSO Act on the basis of the statement of the victim, who was
around 11 years old at that time. It is the case of the prosecution that
the appellant was the victim’s neighbour. Allegedly, on the said date,
at around 2PM in the afternoon, when the victim had gone to the toilet
outside his room, the appellant enticed the victim to come to his room
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 2 of 15

with a promise to show a movie on his mobile. When the victim went
to the house of the appellant, he allegedly took off the victim’s pants
as well as his own pants and sodomised the victim by inserting his
penis into the anus of the victim. The victim screamed loudly and
started crying, whereafter, his brother T came to the spot. On returning
home, the victim told his mother about the entire incident. In the
meantime, the appellant ran away from the spot.
b. In his statement under Section 164 of the Code of Criminal
Procedure, 1973 (‘ CrPC ’), the victim supported the case of the
prosecution. During recording of his evidence, the victim turned
hostile and asserted that he had named the appellant as the culprit out
of nervousness.
c. By the impugned judgment, the learned Trial Court convicted
the appellant after finding that the prosecution had reasonably proved
its case and the appellant had been unable to rebut the statutory
presumptions under POCSO Act. It was observed that even though the
victim had not identified the appellant as the culprit and asserted that
he had not seen the offender, however, the presence of semen of the
appellant on the recovered pant of the victim proved that the appellant
had committed penetrative sexual assault with the victim. It was
further observed that the evidence of the victim’s father (PW2) as well
as that of the doctor who seized the pant of the victim (PW5)
evidenced that the pant in question belonged to the victim.
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 3 of 15

Consequently, the appellant was sentenced by way of the impugned
order on sentence.
d. Aggrieved by the same, the appellant filed the present appeal.
e. On 17.11.2025, the Investigating Officer informed this Court
that the victim could not be contacted, whereafter, this Court
proceeded with the matter after noting that the victim had turned
hostile in the trial.
5. The learned counsel for the appellant submitted that the
impugned judgment has been passed without appreciating the material
on record and the appellant has been erroneously convicted in the
present case. He submitted that the deposition of the relevant
witnesses makes it clear that the appellant has been falsely implicated
in the present case.
6. He submitted that the victim has not supported the case of the
prosecution and he has explicitly admitted that he had lied during the
recording of his statement under Section 164 of the CrPC. He
submitted that the victim only took the name of the appellant out of
fear and nervousness, as is also asserted by the victim’s father (PW2)
during cross-examination. He submitted that the victim’s brother
(PW3) has failed to identify the appellant during his examination.
7. He submitted that the victim’s mother (PW10) has also not
supported the case of the prosecution as she has deposed that the
sexual assault occurred with the victim at the public toilet outside their
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 4 of 15

room which casts doubt on the alleged place of occurrence of the
offence as it is the prosecution’s case that the assault took place in the
appellant’s room.
8. He further submitted that the victim did not name the appellant
during his medical examination. He submitted that PW5 (the doctor
who conducted the victim’s medical examination) has found that the
victim’s anal sphincters were intact and there is no mention of the
nature of sexual violence or how much time had elapsed since the
incident.
9. He submitted that one of seized exhibits is that of the pant jeans
of the victim having dirty stains. He submitted that although clotted
blood was found present on the anal area of the victim, no blood was
found on the seized jeans pant, which further raises doubt that the
alleged pant was not the same pant worn by the victim at the time of
the incident. He further submitted that there is doubt that the said
exhibit has been manipulated as PW5 has not mentioned in her report
that there were any type of stains on the jeans of the victim.
10. He submitted that the prosecution has also failed to prove that
the alleged pant belonged to the victim and the victim himself did not
identify the same during examination before the learned Trial Court.
He submitted that the chain of custody of the alleged pant is also
under doubt as the malkhana register was not produced in the present
case.
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 5 of 15

11. He submitted that the FSL report is unreliable and the match of
the appellant’s DNA with the semen stain on the pants supposedly
belonging to the victim is of no consequence as the chain of custody is
unclear in the present case. He submitted that the whereabouts of the
exhibits from 05.06.2019 till 17.06.2019, when the same were sent to
FSL, remains unclear and there is no malkhana entry register or
deposit register to evidence safe custody. He submitted that the
samples were thus susceptible to tampering and there is a two week
delay in sending the samples to FSL, which is fatal to the case of the
prosecution.
12. The learned Additional Public Prosecutor for the State
vehemently contested the submissions made by the counsel for the
appellant. He submitted that the learned ASJ has aptly appreciated the
material on record before returning a finding of conviction against the
appellant.
13. He submitted that the appellant has not been able to rebut the
statutory presumptions under the POCSO Act. He further emphasized
that the appellant had admitted the statement of HC Sarjeet regarding
deposition of case property in malkhana, and he has failed to make out
a case for tampering of exhibits, which were sent for FSL.
ANALYSIS
14. At the outset, it is relevant to note that while dealing with an
appeal against judgment on conviction and sentence, in exercise of
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 6 of 15

Appellate Jurisdiction, this Court is required to reappreciate the
evidence in its entirety and apply its mind independently to the
material on record. If the Appellate Court thinks it necessary, it can
take additional evidence on record before disposing of the appeal as
well.
15. The present case is one where after naming the appellant as the
culprit in his initial statements, the victim in his examination has
resiled and stated that he had not seen the face of the person who had
caught hold of him and assaulted him. The victim has deposed that he
had only named the appellant as he was present there. Even the
victim’s mother has deposed that the victim had taken the name of the
appellant out of fright as he suspected the appellant to be the offender,
however, the victim had not seen the appellant at the time of assault.
16. Pertinently, the victim had not denied that he was sexually
assaulted in the present case. The fact of sexual assault has not been
denied by the victims family members either. Further, as rightly noted
by the learned Trial Court, the allegation of sexual assault is duly
corroborated by the MLC of the victim, which indicates that a tear was
present over the anal verge of the victim. It was found that tenderness
and clotted blood was also present. This led to the doctor (PW5)
opining that there is evidence of recent insertion over the anal area.
17. Noting that the testimony of the victim is duly corroborated in
regard to commission of the sexual offence, the learned Trial Court
endeavored to delve into the identity of the culprit. Rejecting
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 7 of 15

arguments of defence in relation to tampering of samples, the learned
Trial Court found that the FSL report proving presence of DNA of
accused in form of semen on pant of the victim was incriminating.
Thus, the appellant’s conviction rests on the FSL findings.
18. The case of the appellant essentially rests on the victim having
turned hostile and the findings in the FSL report being unreliable on
account of absence of malkhana register as well as delay in sending
samples to FSL.
19. Adverting to a catena of other precedents, recently, the Hon’ble
Apex Court has discussed the reliability of DNA evidence as well as
necessity of a proper chain of custody in the case of Kattavellai v.
State of T.N. : 2025 SCC OnLine SC 1439 . The relevant portion is as
under:
30. Having noticed various gaps as above, the logical question that
arises is where were the swabs?; why were they sent for forensic
analysis belatedly?; were they properly stored?; whether the
Malkhana of the Police Station where they were kept according to
some of the witnesses, was sufficiently equipped or not; if the same
were kept in the hospital, was it ensured that no other member of
the staff could have had access to them?; in whose custody were
they?; if the swabs were damaged, who shall be held responsible
for the destruction of vital evidence, etc. Similar questions arise in
connection with the semen sample taken from the accused as a
consequence of an order passed by the Judicial Magistrate,
Uthamapalayam, on 13th June, 2011. PW-56 states that the said
samples were sent to FSL, Chennai, on 16th June, 2011 but
subsequently returned. It is unclear, yet again, that between 13th
and 16th June 2011 where such samples were stored; who was in
charge thereof and whether he had kept them in safe custody?;
how and in what condition they were sent; when and why they
were returned - unfortunately, all these questions have no answer
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 8 of 15

forthcoming from the record.
31. In Anil v. State of Maharashtra [(2014) 4 SCC 69] this Court
observed that DNA profiles have had a tremendous impact on
criminal investigations. A DNA profile is valid and reliable, but the
same depends on quality control and procedures in the laboratory.
We may add to this position and say, that quality control and
procedures outside the laboratory matter equally as much in
ensuring that the best results can be derived from the samples
collected. We record with some sadness that there are quite a few
cases in which DNA evidence, despite being there, has to be
rejected for the reason that the manner, in which the samples
were handled during and after collection by the concerned
doctor, in transit to the lab, inside the lab and the results drawn
therefrom, are not in accordance with the best possible practices
which would focus on ensuring that throughout this process the
samples remain in pristine, hygienic and biologically suitable
conditions.
xxx
33. Rahul (supra) was a case concerning the kidnap, rape and
murder of a woman, wherein 3 persons were convicted by the
Special Fast-Track Court, Dwarka Courts in Sessions Case No. 91
of 2013. These persons had kidnapped a woman as she returned
from work, proceeded to do horrible things to her, and then
dumped her lifeless remains in a field, from where it was
discovered four days later. The DNA evidence, here, was rejected
because it remained in the police Malkhana for two months and in
such time, the possibility of tampering could not be ruled out. It
was also held that neither the Trial Court nor the High Court had
examined the underlying basis of the findings in the DNA reports
or whether the techniques used had been reliably applied by the
concerned expert. As such, it was concluded that the DNA
profile, in the absence of such evidence, had become highly
vulnerable when the collection and sealing of the samples sent
for examination was not free from suspicion.
34. Prakash Nishad v. State of Maharashtra [ (2023) 16 SCC
357] was a case concerning the rape and murder of a 6-year-old
child. Similar to the present case, it was a case of circumstantial
evidence. Based on the disclosure statement made by the Appellant
therein, the police found certain garments as also traces of semen
of the Appellant on the vaginal smear of the minor victim, based on
which he was sought to be convicted. DNA evidence had to be
rejected by this Court on the grounds that there was a delay in
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 9 of 15

sending the samples to the FSL, which was unexplained. It was
observed that because of the delay, the concomitant prospect of
contamination could not be ruled out. The need for expediency in
sending samples to the concerned laboratories was underscored.
35. This case, incidentally, if not unfortunately, is another one of
the like of the above. Despite the presence of DNA evidence, it has
to be discarded for the reason that proper methods and
procedures were not followed in the collection, sealing, storage,
and employment of the evidence in the course of the Appellant-
convict's conviction. DNA, as we have observed, has been held to
be largely dependable, even though this evidence is only of
probative value, subject to the condition that it is properly dealt
with. Over the past decades, many cases have come to their logical
conclusion with the aid of DNA evidence in many regions across
the world. It is also equally true that many persons wrongly
convicted have finally had justice served, with them being declared
innocent because of advancements in this technology. It is
unfortunate that, alongside such advancements, we still have
cases where, despite the evidence being present, it has to be
rejected for the reason that the concerned persons, either doctors
or investigators, have been careless in the handling of such
sensitive evidence. ”
(emphasis supplied)
20. It is imperative to note that the learned Trial Court was
essentially persuaded to rely upon the FSL report as it was found that
the prosecution had been able to prove that the samples remained
sealed throughout. While the same may be a persuading factor which
may lend credence to the non-tampering of the samples, the present
case is one where the prosecution is entirely silent about the
whereabouts of the said seized samples.
21. Mere assertion of the samples not being tampered is not
sufficient to conclude that the samples remained in self-same
condition from the time of seizure till they reached FSL. In his
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 10 of 15

testimony, the investigating officer (PW13) deposed that the sealed
exhibits of the accused appellant as well as the victim were handed to
him, which he had later sent for FSL. However, PW13 provides no
clarity as to where the seized samples were stored in the intervening
period. Although PW13 has denied any assertion of tampering, his
testimony remains silent about the reason for delay in sending of
samples to FSL as well, whereby, even though the seizure happened
on 05.06.2019, the samples were dispatched to FSL only on
17.06.2019.
22. Pertinently, although HC Sarjeet was listed as a witness in
charge sheet for adducing case property as well as malkhana record,
his statement was admitted by the appellant under Section 294 of the
CrPC. Unfortunately, a perusal of the statement shows that the same
only relates to handover of the pullandas to Constable Jagram for
deposition in FSL, Rohini. There is nothing to show that the samples
were promptly deposited in the malkhana, and there is ambiguity
about the safe keeping of the materials between 05.06.2019 and
17.06.2019.
23. The criminal jurisprudence is premised on the principle that a
conviction cannot be sustained on the basis of mere surmises or
conjecture. It is well-settled that unless the prosecution proves safe
custody of the seized samples, the FSL report cannot be accepted
merely because of there being no material on record which evidences
manipulation.
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 11 of 15

24. At the same time, such lapses by prosecution, done deliberately
or inadvertently, cannot lead to automatic acquittals. Inaction of
concerned officers ought to be dealt with a strict hand. In Kattavellai
v. State of T.N. ( supra ) as well, the Hon’ble Apex Court has lamented
that despite presence of evidence, the same is to be discarded due to
carelessness of doctors or investigators. It is the duty of the Court to
proactively ensure, within the bounds of law, that complete and
absolute justice is done, and to make sure that an accused who is
guilty is not allowed to get off scot-free. The failure of the prosecution
to prove the safe custody of the seized exhibits, which can link the
appellant to the crime, does not preclude the Court from getting to the
root of the matter and calling for evidence to satisfy itself on this
aspect.
25. The sensitivity of the allegations in the present case cannot be
understated. The case pertains to sexual assault of a minor boy in
vicinity of his home, where despite turning hostile, the victim has not
denied the sexual assault. However, as noted above, as the victim has
not identified the appellant as the culprit during examination, the only
evidence which links the accused to the incident is the FSL report, the
reliability of which remains under cloud due to absence of malkhana
record in relation to the seized samples as well as unexplained delay in
sending the exhibits for FSL. Pertinent questions in relation to where
such samples were stored and in what condition as well as what
caused the delay in dispatching samples have been raised. The record
indicates that the prosecution evidence was only concluded on
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 12 of 15

27.03.2025. There is a good chance that the prosecution may be able
to adduce the relevant record to establish the safe custody of the
samples. In such circumstances, this Court is not inclined to discard
the FSL report at this juncture and is of the opinion that additional
evidence is necessary to be taken in this respect.
26. Undisputably, this Court in its capacity as an Appellate Court is
empowered to take additional evidence if it deems necessary. In such
circumstances, by invoking the powers under Section 348 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 311 of the
CrPC) read with Section 168 of the Bharatiya Sakshya Adhiniyam,
2023 (earlier Section 165 of the Indian Evidence Act, 1872), this
Court considers it apposite to direct the recording of further evidence
on the aspects underlined in the preceding paragraphs by way of
examination of the investigation officer as well as the concerned
malkhana-in-charge, who was in charge of the samples at the relevant
time.
27. The learned Special Court is directed to record additional
evidence on this limited aspect within a period of 6 months, and to
send the same to this Court thereafter. It is made clear that the
prosecution and the defence would be entitled to lead additional
evidence on the said aspects. Let a digitized copy of the TCR be sent
back to the Special Judge forthwith.
28. Let a copy of this order be communicated to the concerned
Principal District & Sessions Judge for compliance and listing before
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 13 of 15

the Special Court on 08.04.2026.
29. The parties are directed to appear before the concerned Special
Court on 08.04.2026.
30. The hearing in the present appeal is accordingly deferred.
31. List the appeal on 28.10.2026 before this Court.
32. It is clarified that at this stage, this Court has only considered
the limited aspect of the reliability of FSL and not expressed its
opinion in relation to the other arguments advanced by the appellant.
CRL.M.(BAIL) 2101/2025 in CRL.A. 1436/2025
33. The present application has been filed by the appellant seeking
suspension of his sentence and his release on bail till the disposal of
the present appeal.
34. In case the prosecution is unable to prove safe custody of the
seized samples so as to lend credence to the findings in the FSL report,
prima facie , in the absence of any material which corroborate the
initial allegations levelled by the victim, there is a good probability
that the appellant will be acquitted in the present case.
35. It is mentioned in the application that the appellant has clean
antecedents and he is the sole bread earner in his family.
36. In such circumstances, considering that the appellant has
already spent around seven years in custody and recording of further
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 14 of 15

evidence and the final adjudication of the appeal will take
considerable amount of time, this Court therefore considers it apposite
to suspend the impugned order on sentence till the pendency of the
present appeal. The appellant is directed to be released on furnishing a
personal bond for a sum of ₹20,000/- with two sureties of the like
amount respectively, subject to the satisfaction of the concerned Trial
Court, on the following conditions:
a. The appellant shall not contact the victim or any other
witnesses associated with the case;
b. The appellant shall, under no circumstances, leave the
country without the permission of the Court;
c. The appellant shall furnish a proof of residence where
he shall reside upon his release, and he shall not change
the address without informing the concerned IO/ SHO;
d. The appellant shall, upon his release, give his mobile
number to the concerned IO/SHO and shall keep his
mobile phone switched on at all times;
e. The appellant shall appear before this Court as and when
directed.
37. The present application is allowed in the aforesaid terms.
AMIT MAHAJAN, J
MARCH 16, 2026/ ‘KDK’
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:17.03.2026
16:31:00
CRL.A. 1436/2025 Page 15 of 15