Yogesh Tanwar vs State

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.04.2026
Pronounced on: 18.06.2026
+ CRL.A. 199/2020 & CRL.M.(BAIL) 756/2024
YOGESH TANWAR .....Appellant
Through: Mr. Shivek Trehan (DHCLSC),
Ms. Manika Pandey, Mr.Akash
Chandna, Advs.
versus
STATE ....Respondent
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav, Adv.
for State, with Insp. Subhash
Chand, PS-Malviya Nagar for
the State.
Ms. Taruna Ardhendumanli
Prasad, Mr. Siddharth Kumar,
Ms. Anusha Rathore, Advs. for
the victim.
AND
+ CRL.A. 205/2022
STATE OF NCT OF DELHI .....Appellant
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav, Adv.
for State, with Insp. Subhash
Chand, PS-Malviya Nagar for
the State.
Ms. Taruna Ardhendumanli
Prasad, Mr. Siddharth Kumar,
Ms. Anusha Rathore, Advs. for
the victim.
versus
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YOGESH TANWAR ....Respondent
Through: Mr. Shivek Trehan (DHCLSC),
Ms. Manika Pandey, Mr.Akash
Chandna, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
RAVINDER DUDEJA, J.
1. The appellant Yogesh Tanwar has filed CRL.A. 199/2020 under
Section 374(2) of the Code of Criminal Procedure, 1973 [“ Cr.P.C. ”],
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assailing the judgment of conviction dated 28 November, 2019 and
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the order on sentence dated 29 November, 2019, passed by the
learned Additional Sessions Judge-01, Special Court (POCSO), South
District, Saket Courts, New Delhi [“ Trial Court ”] in case arising out
of FIR No. 1009/2014, registered under Section 376(2) of the Indian
Penal Code [“ IPC ”] and Section 4 of the Protection of Children from
Sexual Offences Act, 2012 [“ POCSO ”] Police Station Malviya
Nagar.
2. On the other hand, the State has also preferred CRL.A.
205/2020, under Section 377 Cr.P.C., taking exception to the order on
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sentence dated 29 November, 2019 and praying that the
appellant/convict namely Yogesh Tanwar, be awarded the maximum
punishment prescribed by law.
3. Since both the appeals emanate from the same FIR and assail
the common impugned judgment and order on sentence, they are
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being disposed of together by this common judgment.
Factual Background
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4. The prosecution case, as per charge sheet, is that on 11
August, 2014, at about 11.00 pm, while SI Rampal Singh (PW-13)
along with Constable Matu Ram (PW-9) were returning back to the
police station after conducting enquiry in respect of DD No. 70-A (Ex.
PW-10E) and when they reached near Sai Temple, complainant “S”
(name withheld), mother of the child victim, met them and informed
that her daughter “A”, aged about four years (name withheld), was
sexually assaulted by her cab driver namely Yogesh Tanwar. PW-9
and PW-13 then went to the house of “S” and Women Constable
Jasbir Kaur (PW-8) was also called at the house of “S”. The victim
and her parents were then taken to AIIMS Hospital for medical
examination of the victim. The medical examination of the victim was
conducted vide MLC No. 13550/2014. The victim was counselled by a
counsellor Ms. Usha Rani from Butterfly NGO, and her version was
recorded. In the meanwhile, SI Rita (PW-14) also came at AIIMS.
Complainant “S” (PW-4) handed over a written complaint (Ex. PW-
4/A) to her. PW-14 prepared the rukka Ex. PW-14/A and sent the
same at PS Malviya Nagar through PW-9, and on the basis of the said
rukka , FIR (Ex. PW-10/A) was recorded by Duty Officer ASI Raj
Kumar (PW-10). After registration of the FIR, investigating was
handed over to SI Beena (PW-15).
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5. On 12 August, 2014, IO SI Beena alongwith Ct. Kuldeep went
to House No. 43, Christian Colony, Fatehpur Beri where they met
accused Yogesh Tanwar and one Navneet Masih PW-6, the owner of
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the vehicle used in the present case. After interrogation, accused
Yogesh Tanwar was arrested and his disclosure statement [Ex.
PW11/C] was recorded. Thereafter, he was medically examined at
AIIMS vide MLC Ex. PW-5/A.
6. The vehicle used in the present case, being a red-colour Santro
car bearing registration no. DL 9CA 8878, was seized vide seizure
memo Exhibit PW6/A from Navneet Masih PW-6, who stated that he
runs the business of school vans and had hired accused Yogesh
Tanwar as a driver. He also stated that this was the same car which he
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had given to the accused on 11 August, 2014 to pick and drop kids
from Delhi Public School, Vasant Vihar. The car was deposited in
malkhana .
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7. On 07 September, 2014, the IO also interrogated one Rishi,
who stated that he is the registered owner of the Santro car and that he
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had sold the said car to Navneet Masih PW-6 on 10 August, 2014 for
Rs. 65,000/- and produced Cash receipt [Ex. PW 6/B] and Delivery
receipt [Ex. PW 7/A]. The car was later released on superdari after
Rishi, being the registered owner of the car, moved an application for
releasing the car on superdari to him [Ex. PW 7/B].
8. During the investigation, IO collected the birth proof of the
victim to prove that the age of the victim was approximately four
years at the time of incident.
9. Upon completion of investigation, chargesheet was filed against
accused Yogesh Tanwar under Section 4 POCSO Act and Section
376(2)(f) and (i) of IPC.
10. Initially, the charges were framed against the accused under
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Section 4 of the POCSO and Section 376(2) IPC. During the course of
trial, the charges were amended in terms of Section 216 Cr.P.C, and
amended charges were framed against the accused for the offences
punishable under Section 6/10 of the POCSO Act and Sections
376(2)/354 IPC. Accused pleaded not guilty and claimed trial.
11. In order to prove its case, prosecution examined 15 witnesses,
including the victim and her mother.
12. The statement of accused was recorded under Section 313
Cr.P.C, wherein, he denied all the incriminating circumstances put to
him and claimed false implication. He stated that he has been falsely
implicated at the instance of PW-4 (mother of the prosecutrix) as he
had an altercation with her few days prior to the registration of the FIR
on the issue of non-payment of cab charges, and due to this reason,
she had got annoyed and falsely implicated him in the present case. He
further stated that it seems that when something had gone wrong with
her daughter, she deliberately took his name. He also stated that it
seems that since now a days the issues pertaining to sexual offences
against the children have become more sensitive, therefore, without
going into the depth of the case, he has been implicated falsely by the
police as well, who have not conducted the investigation in a fair and
proper manner. The accused further stated that he is a married person
and father of two children and during the course of his duties, he had
always handled the children carefully and he cannot even think of
such a heinous crime, being himself father of a daughter.
13. Upon appreciation of the evidence and the material on record,
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the learned Trial Court vide Judgment dated 28 November, 2019
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convicted accused Yogesh Tanwar for offences under Sections
376(2)/354 IPC and Section 6 read with Section 5/3 of the POCSO
Act and Section 10 read with 9/7 of the POCSO Act and vide o rder on
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sentence dated 29 November, 2019, sentenced accused Yogesh
Tanwar as under:
[7]. …. (i) Rigorous imprisonment for a period of ten
“
years for the commission of the offence punishable
under section 6 read with section 5/3 of the Protection
of Children from Sexual Offences Act and to pay fine
in the sum of Rs. 20,000/- (Rupees Twenty Thousand
Only). In the event of his failure to pay the said fine
amount the convict shall further undergo simple
imprisonment for a period of one month . The entire
fine amount be paid to the victim as compensation.
(ii) Rigorous imprisonment for a period of five years for
the commission of the offence punishable under section
10 read with section 9/7 of the Protection of Children
from Sexual Offences Act and to pay fine in the sum of
Rs. 10,000/- (Rupees Ten Thousand Only). In the event
of his failure to pay the said fine amount, the convict
shall further undergo simple imprisonment for a period
of one month . The entire fine amount be paid to the
victim as compensation.”
14. Feeling aggrieved by the judgment of conviction and order on
sentence, appellant/accused Yogesh Tanwar has preferred CRL.A.
199/2020 before this Court..
15. The State has preferred CRL.A. 205/2020, seeking enhancement
of the sentence awarded to the accused on the ground that the
punishment imposed was inadequate considering the gravity and
nature of the offence.
Submissions of the learned counsel for the Appellant Yogesh
Tanwar
16. The learned counsel appearing on behalf of the appellant
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submitted that the learned Trial Court failed to appreciate the evidence
in its proper perspective and convicted the accused despite serious
infirmities in the prosecution case.
17. It was argued by the learned counsel for the appellant that the
testimony of the prosecutrix [PW-1] was not reliable and did not
inspire confidence. Particular emphasis was laid upon the fact that
during her deposition before the Court, the prosecutrix failed to
identify the accused despite having being declared hostile and
subjected to cross-examination by the learned Additional Public
Prosecutor. It was submitted that this aspect goes to the root of the
matter and creates a serious doubt regarding the identity of the
accused.
18. The learned counsel further submitted that there existed a strong
possibility of tutoring of the child witness. It was contended that the
testimony of the prosecutrix was not clear and appeared to be
influenced. On her being cross-examined by counsel for accused, she
admitted that her parents asked her to tell the Court that the accused
touched her vagina and scratched her chest. It was argued that the
inability of the prosecutrix to identify the accused in Court, coupled
with the possibility of tutoring, materially weakens the prosecution
case and entitles the accused to the benefit of doubt.
19. The learned counsel for the appellant also contended that the
allegations regarding penetrative sexual assault were vague in nature
and unsupported by cogent medical evidence. It was argued that there
were no external injuries and no allegation of penile penetration. The
absence of injuries and the nature of allegations, it was argued, do not
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disclose the existence of extremely aggravating circumstances
warranting imposition of a harsher sentence.
20. It was further submitted that the present case pertains to the
unamended provisions of the POCSO Act, under which the maximum
punishment prescribed for the offence under Section 6 of the POCSO
Act was ten years imprisonment. Learned counsel argued that the
learned Trial Court had already imposed the adequate punishment
after detailed consideration of evidence and therefore, there was no
justification for enhancement of sentence.
21. On the question of sentence, learned counsel for the appellant
submitted that the learned Trial Court had not specifically directed
whether the sentences awarded under different provisions were to run
concurrently or consecutively. Relying on the judgment of Supreme
Court in Gagan Kumar Vs, State of Punjab, (2019) 5 SCC 154 and
the judgment of Rajasthan High Court in S.B. Criminal Misc. Appli.
No. 13/2023 titled Sohanlal and Anr. Vs. State of Rajasthan, it was
contended that the Courts are obligated to specify whether the
sentence of the convict is to run concurrently or consecutively.
22. It was argued that since the alleged acts arose out of the same
transaction, the sentences had ought to run concurrently in terms of
Section 31 Cr.PC. It was contended that directing the sentences to run
consecutively would effectively result in incarceration for fifteen
years, which would defeat the mandate contained in the proviso to
Section 31 Cr. PC. Learned counsel argued that it is a thumb rule that
if there are offences arising out of a single transaction, sentences are to
run concurrently. Reliance was placed on Nagaraja Rao Vs. Central
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Bureau of Investigation, (2015) 4 SCC 302 and Kuldeep Singh Vs.
State of Haryana and Anr., (2018) 18 SCC 652 .
23. The learned counsel further argued that the proviso to Section
31 Cr.PC. clearly stipulates that in no case shall the aggregate
punishment exceed fourteen years. It was submitted that the language
of the proviso is absolutely clear and does not carve out any exception
in cases involving offences punishable with life imprisonment.
According to learned counsel, the expression “in no case” used in the
proviso admits of no qualification or exception and therefore the
aggregate sentence cannot exceed fourteen years. Reliance was placed
on Zulfiwar Ali and Anr. Vs. State of UP, 1986 SCC Online All 325
and Chattar Singh Vs. State of MP, (2006 ) 12 SCC 37. Learned
counsel further stated that the appellant has undergone more than six
years of incarceration, has maintained good conduct in jail and has no
previous criminal antecedents. He prayed that CRL.A. 199/2020 be
allowed and the impugned judgment and order on sentence be set
aside.
Submissions of the learned Additional Public Prosecutor for the
State
24. Per contra , learned Additional Public Prosecutor [APP]
appearing for the State, submitted that the learned Trial Court had
passed a detailed and well-reasoned judgment based on just
appreciation of evidence. It was argued that the offence committed by
the accused was gruesome involving aggravated penetrative sexual
assault upon a child aged about four years.
25. The learned APP submitted that the accused was admittedly the
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driver of the school cab used for transportation of the prosecutrix and
was therefore in a position of trust. It was argued that the breach of
such trust itself constitutes a significant aggravating circumstance.
Learned APP further pointed out, that even the owner of the vehicle
had identified the accused as the driver of the cab on the relevant date.
26. Learned APP also rebutted the defence raised regarding alleged
non-payment of van charges by the family of the prosecutrix. It was
argued that the accused was merely the driver of the vehicle and not
its owner, and therefore any alleged dispute regarding payment of cab
charges had no relevance to the allegations in question. It was further
submitted that the owner of the vehicle in his statement had nowhere
stated that the family of the prosecutrix had defaulted in payment of
charges.
27. It was further submitted that the inability of the prosecutrix to
identify the accused during her deposition after passage of
considerable time cannot be treated as fatal to the prosecution case. It
was contended that the testimony of a child witness is required to be
appreciated with due regard to the age, mental condition and trauma
suffered by the child. Learned APP argued that the substantive portion
of the testimony of the prosecutrix, wherein she clearly attributed acts
of sexual assault to the van driver Yogesh Tanwar, remained intact
and stood duly corroborated by her statement recorded under Section
164 Cr. PC as well as the testimony of her mother. It was argued that
the prosecution had succeeded in proving the guilt of the accused
beyond reasonable doubt.
28. On the aspect of sentence, learned APP argued that despite the
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seriousness of the offence, the learned Trial Court had imposed only
the minimum sentence prescribed under law. It was submitted that the
learned Trial Court had failed to adequately consider the aggravating
circumstances including the tender age of the victim and the breach of
trust by the accused. According to him, there were no mitigating
circumstances justifying award of only the minimum punishment of
10 years.
29. Learned APP further submitted that the proviso to Section 31
Cr. PC operates only in cases where the maximum sentence prescribed
is not life imprisonment. According to him, in the facts of the present
case, this Court is fully empowered to direct the sentences to run
consecutively. Learned APP accordingly prayed that the sentence be
enhanced and that the accused be directed to undergo consecutive
sentences, contending that at least twenty years imprisonment ought to
be imposed considering the gravity of the offence.
Reasoning and Analysis
30. We have considered the submissions made by the learned
counsel for the appellant Yogesh Tanwar and learned APP on behalf
of the State and have perused the material on record.
31. In a case of sexual assault and particularly under the POCSO
Act, the age of the victim is of considerable importance. The
prosecution case is that victim “A” was subjected to aggravated sexual
assault and aggravated penetrative sexual assault by the
appellant/accused Yogesh Tanwar, a school cab driver, who was in a
position of trust and authority vis a vis the minor victim.
32. Admittedly, the prosecutrix was a child of tender age,
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approximately four years old at the time of incident. The birth
certificate Ex. PW-15/A, collected during investigation, proves her
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date of birth as 08 June, 2010. The birth certificate has been proved
by PW-12 Sh. Shiv Kumar, Record Clerk from the Office of Sub
Registrar (Birth & Death), MCD. There is no cross examination of
PW-12 with regard to the age of the victim. In his statement under
Section 313 Cr. PC, the birth certificate of the victim was put to the
accused but he did not dispute the same. It is thus proved that the age
of the victim was about four years at the time of commission of the
alleged offences, and accordingly, the provisions of POCSO Act are
squarely applicable in the present case.
33. The principal contention raised on behalf of the appellant is that
the testimony of child witness (PW-1) is unreliable, inasmuch as, she
failed to identify the accused before the Court, and further admitted
during cross examination that her parents had asked her to state that
the accused had touched her private parts and scratched her chest.
Thus, as per appellant, PW-1 is a tutored witness and her failure to
identify the accused demolishes the prosecution case.
34. The aforesaid submission, though attractive at first instance,
does not merit acceptance in the facts and circumstances of the present
case. The testimony of a child witness cannot be appreciated in the
same manner as that of an adult witness. A child of a tender age is
susceptible to fear, confusion and lapse of memory owing to passage
of time. The prosecutrix was examined before the Court after a
considerable delay of almost one and a half years from the date of the
incident. Merely because the prosecutrix failed to identify the accused
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in Court after a long lapse of time, cannot by itself, render the
prosecution case doubtful, particularly when the identity of the
accused otherwise stands established from independent evidence on
record.
35. PW-1 deposed that the driver of the van namely Yogesh had
touched her vagina and had scratched her chest. She further stated that
after the incident, when she was brought before the Court, she narrated
the entire incident to the learned Judge and her statement under
Section 164 Cr. PC was recorded, which is Ex. PW-1/A. She also
deposed about the recording of her statement by the police officials. It
is evident from her testimony that her van driver namely Yogesh had
committed the offence. The learned Trial Court rightly observed that
the identification by the victim in the Court is only one of the factors
which is to be considered to find out as to whether the accused had
committed the offence or not. If the identity of the accused can be
established from the other evidence on record and there is some
explanation for non-identification of the accused by the victim, then
the fact that the victim has failed to identify the accused would not be
fatal to the prosecution case.
36. The learned Trial Court took note of the fact that the victim was
made to identify the accused through video link on the TV screen in
the Vulnerable Witness Room and was personally not produced before
the witness (face to face) and merely his face was displayed on the TV
screen and it is possible that the appearance of the accused might have
changed due to his being lodged in jail for a considerable period of
time and therefore it is reasonable to conclude that it was difficult for
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the child, aged about four years, to clearly identify the accused in such
circumstances after a lapse of considerable time. Such view taken by
the learned Trial Court appears to be just and reasonable and does not
call for any interference.
37. The identity of the appellant as school van driver stands
conclusively established from the testimony of PW-4 Ms. “S” and
PW-6 Navneet Masih. PW-4 categorically deposed that she had hired
the school van through PW-6 Navneet Masih and appellant Yogesh
was the driver of the said vehicle. She further stated that the victim
had been travelling in the said van and she recognized the appellant.
38. PW-6 Navneet Masih, the owner of the school van (Santro car)
also deposed that accused Yogesh Tanwar was employed by him as
the driver of the school van for picking and dropping the children to
school. He categorically deposed that victim Ms. “A” was one of the
children amongst the six children whom the accused used to pick and
drop. He identified accused Yogesh Tanwar in Court as the driver of
the school cab of the victim.
39. During cross examination of PW-4, accused himself gave
suggestion to the witness that the van belonged to Navneet Masih and
accused Yogesh was working as a driver on the said van. He further
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gave suggestion to her that on 11 August, 2014, accused Yogesh had
demanded the van charges in the morning and she had promised to
pay the charges after he returned from the school. He gave yet another
suggestion to PW-4 that when her daughter was dropped by the
accused, she was happy and had not made any complaint against the
accused. It is evident from the suggestions given that accused has not
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disputed his identity that he was the cab driver, employed by PW-1 for
picking and dropping her daughter from the school on the relevant
day. Similarly, there is no cross examination of PW-6 Navneet Masih
to contest the identity of accused as the school cab driver. In his
statement under Section 313 Cr. PC, accused admitted that he was
hired by PW-6 Navneet Masih as a driver of the school van since July
2014 and was assigned the work of picking and dropping of six
children from the location of Malviya Nagar, Vasant Kunj and Khirki
Extension and the victim was amongst one of the said six children
whom he used to pick and drop.
40. It is thus apparent that at no point during the trial, accused
Yogesh Tanwar disputed his identity as school van driver of the
victim on the day of incident. The material on record when viewed in
the light of the testimony of the victim, establishes the identity of
accused Yogesh Tanwar as the offender.
41. The prosecutrix, in her deposition, categorically stated that the
van driver Yogesh had touched her vaginal part and had scratched her
chest. Her statement was also recorded under Section 164 CrPC before
the Magistrate. In cross examination, PW-1 stated that whenever the
van driver got late, her mother never scolded him. She denied the
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suggestion that nothing had happened in the van on 11 August, 2014.
She denied that her mother and father used to quarrel with the van
driver on account of money. She further denied that she gave
statement before the learned Magistrate as well as the IO at the
instance of her parents.
42. The core allegation regarding sexual assault by the van driver
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Yogesh has remained consistent throughout. The contention regarding
tutoring of the prosecutrix also does not persuade this Court to discard
her testimony in toto . The evidence of a child witness is not to be
rejected merely because there exists a possibility of tutoring. The
Court is required to ascertain whether the testimony inspires
confidence and whether the substratum of the prosecution case
remains intact. Even though, PW-1 stated that her parents asked her to
tell the Court that the accused touched her vagina and scratched her
chest, but that does not by itself mean that no such incident had taken
place. We must appreciate that the victim was only a four years old
girl at the time of incident and would not know as to what was to be
done in the Court, and obviously, the parents would have guided her
as to what she was to do in the Court, and may be in that context, such
a statement was made by PW-1. There is nothing in the cross
examination of PW-1 which may indicate that the parents of PW-1
had tutored her to make false allegation against the accused. Rather,
the denial of the suggestions re-confirmed the allegations made by the
victim. Moreover, her version finds substantial corroboration from the
testimony of her mother, who she promptly reported immediately after
the occurrence.
43. It is also noteworthy that the complaint was lodged without
undue delay. The testimony of PW-4 Mrs. “S” assumes considerable
significance since she was the first person before whom the child
disclosed the occurrence after returning from school. PW-4 deposed
that when the prosecutrix returned home, she appeared uncomfortable.
Upon taking her to the bathroom, PW-4 noticed reddish marks and
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scratches on the chest and thighs of the child. On enquiry, the
prosecutrix disclosed that the van driver Yogesh had touched her chest
and thighs and had inserted his finger into her vagina. PW-4 further
stated that the child disclosed that the acts were committed while she
was returning from school. The conduct of PW-4 in promptly
informing her husband and approaching the police, also lends
assurance to the prosecution case. The evidence of PW-8 Constable
Jasbir Kaur and PW-9 Constable Matu Ram further establishes that
immediately after the complaint, the prosecutrix was taken to AIIMS
Hospital for medical examination and the written complaint Ex. PW
4/A was made without undue delay. The promptness in reporting the
matter considerably reduces the possibility of fabrication or false
implication.
44. PW-3 Dr. Richa Vatsa, who medically examined the prosecutrix
at AIIMS Hospital, prepared the MLC Ex. PW 3/A. The MLC Ex.
PW-3/A records sexual assault history given by the victim and her
mother. As per such history of assault, the driver of the cab had
touched the breast, scratched the breast and thigh and touched her
perianal area with his fingers and inserted his finger into the vagina of
the victim. In her cross examination, PW-3 categorically stated that
the child herself had narrated the medical history to her and not her
parents. As per MLC Ex. PW-3/A, there were bruise marks on the
chest of the child and congestion around the ruptured hymen. In cross
examination, she clarified that since the medical history of fingering
was narrated, therefore, it was possible that the hymen ruptured due to
such fingering of vagina.
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45. PW-3 denied the suggestion that hymen rupture was an old one.
Although, PW-3 admitted in cross examination that hymen rupture
may occur due to other causes as well, but there is no material on
record to show that hymen was ruptured due to any other cause.
46. In her deposition before the Court, the victim merely stated
that accused had touched her vaginal part and did not depose about
insertion of the finger. The rupture of hymen is not possible just by
touching. The learned Trial Court rightly observed that MLC report of
the victim coupled with the testimony of the doctor shows that it was a
case of fingering and the fact that the hymen was found ruptured and
congestion was found around the genital area shows that the accused
had inserted his finger into the vagina of the victim.
47. According to the learned Trial Court, the victim was a four year
old girl and is therefore possible that she would not have clearly
understood the difference between touching and fingering (broadly
fingering is also touching) and therefore, she could not give further
details, nor further details were sought from her. Thus, the medical
evidence duly support the allegations of the victim and proves that
accused had inserted his finger into the vagina of the victim and such
insertion was a reason for the rupturing of the hymen.
48. Emphasis was laid by the learned counsel for the appellant
regarding the absence of extensive injuries on the private parts of the
victim, but such argument is devoid of merit. Under Section 3 of the
POCSO Act, penetration “to any extent” is sufficient to constitute
penetrative sexual assault. Penetration, however little, is sufficient to
attract the offence. Therefore, the absence of extensive injuries cannot
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be treated as decisive, particularly when the ocular testimony of the
victim inspires confidence. In the present case, the ocular testimony of
the prosecutrix, prompt disclosure made to PW-4 and the medical
findings regarding hymen congestion and rupture sufficiently establish
the ingredients of penetrative sexual assault.
49. The defence plea that appellant has been falsely implicated
owing to a dispute regarding the payment of cab charges, does not
inspire confidence. Admittedly, the appellant was merely the driver of
the vehicle and not its owner. The cab charges were to be paid to PW-
6 Navneet Masih, owner of the cab. Significantly, PW-6 did not
support the defence version regarding the non-payment of the cab
charges. No question was put to him during cross examination on this
account. If there was any such dispute regarding the payment of cab
charges between the accused and PW-6 on the one hand and PW-4 on
the other hand, these facts ought to have been elucidated in the
testimony of PW-6, but no such question was put to PW-6 in this
regard. Thus, the defence plea of false implication, appears to be a
bald assertion, unsupported by any cogent material.
50. In our view, the learned Trial Court has meticulously analysed
the evidence on record and has rightly concluded that the testimony of
the prosecutrix inspires confidence notwithstanding her inability to
identify the accused in Court. The learned Trial Court correctly
appreciated that the identity of the appellant stood independently
established from the testimonies of PW-4 and PW-6 and prosecution
was able to establish the foundational facts of the case and
presumption of Section 29 of the POCSO Act also operates against the
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accused, but accused miserably failed to rebut the said presumption.
51. Considering the overall facts and circumstances of the case, we
find ourselves in agreement with the conclusions arrived at by the
learned Trial Court that the prosecution has successfully established
its case beyond reasonable doubt that the appellant committed
aggravated penetrative sexual assault punishable under Section 6 read
with Section 5/3 of the POCSO Act and aggravated sexual assault
punishable under Section 10 read with Section 9/7 of the POCSO Act.
Thus, we find no infirmity in the impugned judgment of conviction
th
dated 28 November, 2019 passed by the learned trial court.
52. Coming now to the question of sentence, the State has sought
enhancement of punishment contending that the learned Trial Court
th
vide order on sentence dated 29 November, 2019 awarded only the
minimum sentence despite existence of aggravating circumstances. On
the other hand, the appellant argued that the learned Trial Court has
already awarded adequate punishment and that no case for
enhancement is made out.
53. Sentencing in cases involving sexual offences against children
demands a cautious balance between the rights of the convict and the
societal interest in ensuring protection of children from sexual
offenders. The punishment imposed by the Court in such cases should
be just, fair, proportionate and reasoned, reflecting both seriousness of
the offence and the possibility of reform of the offender. The Courts
are therefore expected to exercise sentencing discretion judiciously.
54. Undoubtedly, the offence committed by the appellant is grave
and serious in nature. The victim was a child of approximately four
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years and the appellant a school van driver, occupied a position of
trust and confidence. The betrayal of such trust by committing sexual
assault upon a child of tender age, constitutes a serious aggravating
circumstance. The trauma suffered by a child victim in cases of sexual
assault, cannot be measured merely in physical terms, as such
incidents leave deep emotional and psychological scars upon the child.
55. However, on an overall appreciation of the impugned order on
sentence and also considering the prayer for enhancement of sentence,
we find that the learned Trial Court, considering his age and socio-
economic background and dependency of his family members on him,
sentenced the appellant to the minimum prescribed sentence under
Section 6 and 10 of the POCSO Act. The learned Trial Court also
directed payment of compensation to the victim in addition to the fine
imposed upon the appellant. The nominal roll of the appellant does
indicate any other previous criminal involvements. We find that the
th
order on sentence dated 29 November, 2019 reflects due application
of mind by the learned Trial Court to the mitigating circumstances.
We do not find that the sentence imposed by the learned Trial Court to
be suffering from any such infirmity, warranting enhancement.
56. We now proceed to deal with another issue, that is, whether the
sentences awarded to the appellant shall run concurrently or
consecutively.
57. We note that both the offences for which the appellant has been
convicted and sentenced, arise from a single transaction. Where an
accused is convicted and sentenced for several offences at one trial,
the Court may direct that the sentences shall run concurrently. In the
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absence of such direction by the Court, sentences would run
consecutively. It is not obligatory for the learned Trial Court to direct
in all cases that the sentences shall run concurrently. The discretion
must be used in a judicially sound manner and not casually.
58. A perusal of Section 31 Cr.P.C. reveals that it refers to the
jurisdiction of the Court to impose punishment when the accused is
found guilty of two or more offences during a single trial. Section 31
Cr.PC. is reproduced below for ready reference:-
“ 31. Sentence in cases of conviction of several
offences at one trial
(1) When a person is convicted at one trial of two
or more offences, the Court may subject to the
provisions of section 71 of the Indian Penal Code
(45 of 1860), sentence him for such offences, to the
several punishments prescribed therefor which
such Court is competent to inflict; such
punishments when consisting of imprisonment to
commence the one after the expiration of the other
in such order as the Court may direct, unless the
Court directs that such punishments shall run
concurrently.
(2) In the case of consecutive sentences, it shall not
be necessary for the Court by reason only of the
aggregate punishment for the several offences
being in excess of the punishment which it is
competent to inflict on conviction of a single
offence, to send the offender for trial before a
higher Court.
Provided that -
(a) in no case shall such person be sentenced to
imprisonment for a longer period than fourteen
years;
(b) the aggregate punishment shall not exceed
twice the amount of punishment which the Court is
competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted
person, the aggregate of the consecutive sentences
passed against him under this section shall be
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deemed to be a single sentence. ”
59. Section 31 Cr.PC. empowers the trial court with discretionary
powers to direct whether sentences shall run consecutively or
concurrently, depending upon the nature and gravity of offences and
presence of any aggravating or mitigating factors, if any. A two-Judge
bench of the Hon’ble Supreme Court in Nagaraja Rao (supra) stated
that legal obligation is upon the Court of first instance to specify
whether the sentences are to run consecutively or concurrently. The
relevant para is reproduced hereinunder:-
“ 11. The expressions “ concurrently ” and “ consecutively ”
mentioned in the Code are of immense significance while awarding
punishment to the accused once he is found guilty of any offence
punishable under IPC or/and of an offence punishable under any
other Special Act arising out of one trial or more. It is for the
reason that award of former enure to the benefit of accused
whereas award of latter is detrimental to the accused’s interest. It
is, therefore, legally obligatory upon the Court of first instance
while awarding sentence to specify in clear terms in the order of
conviction as to whether sentence awarded to the accused would
run “ concurrently ” or they would run “ consecutively ”. ”
60. The Hon’ble Supreme Court in Mohd. Akhtar Hussain @
Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs, (1988) 4
SCC 183 held that the basic rule of thumb is that where offences form
part of the same transaction, concurrent running of sentences shall
apply. It was further observed that this rule won’t have application in
cases where offences do not pertain to the same transaction and have
different facts. Similar view was taken by A two-Judge bench of the
Hon’ble Supreme Court in Sunil Kumar @ Sudhir Kumar & Anr. Vs.
The State of Uttar Pradesh, CRL.A. 526/2021, while holding that
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consecutive running of sentences is not the normal rule, also held that
there also cannot be any straitjacket approach in the matter of exercise
of discretion by Courts under Section 31 of Cr.PC and the same has to
be done judiciously.
61. A landmark three-Judge bench of Hon’ble Supreme Court in
O.M. Cherian @ Thankachan Versus State of Kerala & Ors., ( 2015)
2 SCC 501 ruled that sentences imposed for multiple offences in a
single trial arising out of the same transaction should generally run
concurrently, not consecutively.
“ 11. The words “unless the court directs that such
punishments shall run concurrently” occurring in
sub-section (1) of Section 31, make it clear that
Section 31 Cr.P.C. vests a discretion in the Court
to direct that the punishment shall run
concurrently, when the accused is convicted at one
trial for two or more offences. It is manifest from
Section 31 Cr.P.C. that the Court has the power
and discretion to issue a direction for concurrent
running of the sentences when the accused is
convicted at one trial for two or more offences.
Section 31 Cr.P.C. authorizes the passing of
concurrent sentences in cases of substantive
sentences of imprisonment. Any sentence of
imprisonment in default of fine has to be in excess
of, and not concurrent with, any other sentence of
imprisonment to which the convict may have been
sentenced.
X
X
X
X
16. When the prosecution is based on single
transaction where it constitutes two or more
offences, sentences are to run concurrently.
Imposing separate sentences, when the acts
constituting different offences form part of the
single transaction is not justified. So far as the
benefit available to the accused to have the
sentences to run concurrently of several offences
based on single transaction, in V.K. Bansal vs.
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State of Haryana & Anr. (2013) 7 SCC 211 , in
which one of us (Justice T.S. Thakur) was a
member, this Court held as under:-
“… we may say that the legal position favours
exercise of discretion to the benefit of the prisoner
in cases where the prosecution is based on a single
transaction no matter different complaints in
relation thereto may have been filed as is the
position in cases involving dishonour of cheques
issued by the borrower towards repayment of a
loan to the creditor.”
X
X
X
X
21. Accordingly, we answer the Reference by
holding that Section 31 Cr.P.C. leaves full
discretion with the Court to order sentences for
two or more offences at one trial to run
concurrently, having regard to the nature of
offences and attendant aggravating or mitigating
circumstances. We do not find any reason to hold
that normal rule is to order the sentence to be
consecutive and exception is to make the sentences
concurrent. Of course, if the Court does not order
the sentence to be concurrent, one sentence may
run after the other, in such order as the Court may
direct. ”
62. While dealing with the interpretation and application of Section
31 Cr.PC. in cases where the accused has been punished for multiple
sentences arising out of same transaction, the Hon’ble Supreme Court
in Chattar Singh (supra) held that in no case the aggregate of
consecutive sentences passed against an accused shall exceed 14
years. The relevant para of the judgment reads as under:-
“ 10. The question, however, came up for
consideration in Zulfiwar Ali v. State of U.P. [
1986 All LJ 1177 : (1986) 3 Crimes 199] wherein
it was held: (All LJ p. 1181, para 25)
“25. The opening words ‘In the case of consecutive
sentences’ in sub-section (2) of Section 31 make it
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clear that this sub-section refers to a case in which
‘consecutive sentences’ are ordered. After
providing that in such a case if an aggregate of
punishment for several offences is found to be in
excess of punishment which the court is competent
to inflict on a conviction of single offence, it shall
not be necessary for the court to send the offender
for trial before a higher court. After making such a
provision, proviso (a) is added to this sub-section
to limit the aggregate of sentences which such a
court pass while making the sentences consecutive.
That is this proviso has provided that in no case
the aggregate of consecutive sentences passed
against an accused shall exceed 14 years. In the
instant case the aggregate of the two sentences
passed against the appellant being 28 years clearly
infringes the above proviso. It is accordingly not
liable to be sustained. ”
63. In the present case, the offences under Sections 6 and 10 of the
POCSO Act emanate from the same incident involving the same
victim and constitute part of one continuous single transaction. The
learned Trial Court vide order on sentence dated 29.11.2019 sentenced
the appellant Yogesh to undergo RI for 10 years for offence under
Section 6 read with Section 5/3 of the POCSO Act and RI for 5 years
for offence under Section 10 read with Section 9/7 of the POCSO Act.
64. In the present case, the mandate under Section 31 Cr.P.C. was
not duly followed, inasmuch as, the learned Trial Court did not even
mention in the order the manner in which the substantive sentences
would be served by the appellant. Even, there is no classification as to
which sentence shall be served first and which after completion of
first, thus, leaving the same to the sole discretion of the jail
authorities, which may not be appropriate. No such discretion can be
given to the jail authorities, this being the sole prerogative of the
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Court. The said omission on the part of the learned Trial Court has
resulted into the appellant suffering total aggregate imprisonment of
15 years, in case the sentence awarded to the appellant were to run
consecutively, which is in violation of Proviso to Section 31 Cr.PC.,
and therefore, cannot be sustained.
65. Hence, on an overall conspectus of the facts of the case and the
settled legal principles and in the interest of justice, we hereby affirm
the judgment of conviction and order of sentence of appellant/convict
Yogesh Tanwar passed by the learned Trial Court and further direct
that the separate sentences awarded under Section 6 read with Section
5/3 of the POCSO Act and Section 10 read with Section 9/7 of the
th
POCSO Act shall run concurrently. The order on sentence dated 29
November, 2019 thus stands modified to the aforesaid extent.
66. The appeals are disposed of in the aforesaid terms. Pending
applications are also disposed of.
67. Copy of this order be sent to the Jail Superintendent and learned
Trial Court for necessary information and compliance.
RAVINDER DUDEJA, J.
NAVIN CHAWLA, J.
JUNE 18, 2026/ AK
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