Navratan vs The State (Nct Of Delhi)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.10.2026
Date of Decision: 05.11.2026
Uploaded on: 05.11.2026
# CNR No. DLHC010141122021
+ CRL.A. 144/2021 & CRL.M.(BAIL) 348/2021
NAVRATAN .....Appellant
Through: Mr. Ajay Verma, Ms. Sneha
Sejwal, Ms. Smriti S Nair,
Advocates
versus
THE STATE (NCT OF DELHI) & ANR. .....Respondents
Through: Mr. Raghuvinder Verma, APP
for the State.
Mr. Rajesh Kumar Singh, Mr.
Rohish Arora, Ms. Meenu
Saxena, Amicus Curiae for the victim.
SI, Shyam Bir Singh, PS Okhla
Industrial Area.
CORAM:
HON’BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present appeal has been filed under Section 374(2) of the Code
of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C.”) against
the judgment of conviction dated 06.11.2020 and the order on sentence
dated 10.12.2020 passed by Learned ASJ-07 (Special Court, POCSO Act),
South-East District, Saket Courts, New Delhi, in connection with FIR No.
387/2016 registered at Police Station Okhla Industrial Area, Delhi, whereby
the appellant was convicted for the offence punishable under Section 6 of
the Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as POCSO Act) and sentenced to undergo rigorous
imprisonment for a period of twenty (20) years, along with a fine of
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₹10,000/-, and, in default of payment of fine, to undergo simple
imprisonment for a period of six (6) months.
Brief Facts
2. In brief, the case of the prosecution is that the accused and the victim
(PW-1) were neighbours, residing in separate rooms on the same floor of
the building bearing No. A-24, Harkesh Nagar, Okhla Phase-II, New Delhi.
It is alleged that on 05.06.2016, at about 02:00 PM, while the victim was
playing outside her house, the accused forcibly took her to his room, where
he removed her clothes as well as his own clothes and inserted his penis
into her vagina. The victim started weeping due to the pain caused by the
alleged assault, whereupon the accused threatened to kill her if she
disclosed the incident to anyone. Consequently, the victim did not disclose
the incident to her family members. The incident allegedly came to light on
15.06.2016, when the victim complained of pain in her private parts while
her mother was giving her a bath. Upon being questioned, the victim
disclosed the incident to her mother, who subsequently apprised her
husband. Thereafter, on 16.06.2016, at about 06:30 PM, the parents of the
victim, along with the victim, approached the Police Post, Okhla Industrial
Area, Phase-III, and reported that the accused had done ‘galat kaam’ with
their daughter. The information was reduced to writing vide DD No. 23PP,
and PW-10/Sub-Inspector Kiran Sood recorded the statement of the victim
(Exhibit PW-1/A) in the presence of her mother, ‘G’ (PW-3).
3. The prosecution’s case proceeds further that after the statement of
the victim was recorded, the investigation was assigned to PW-12/Sub-
Inspector Bijender Singh Nagar who took the victim to AIIMS Hospital for
her medical examination, which was conducted by PW-2/Dr. Darshana vide
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MLC (Exhibit PW-2/A). During the examination, her hymen was found
torn and samples, including vaginal smear, were collected and preserved.
On 17.06.2016, the victim was counselled by a counsellor from an NGO,
namely Shakti Vahini, and her statement under Section 164 Cr.P.C. was
recorded before the learned Metropolitan Magistrate, Saket Courts (Exhibit
PW1/B). Upon completion of investigation, the chargesheet was filed
before the Court.
4. Thereafter, Copy of the charge-sheet was supplied to the accused
and on 16.08.2016 charge under Section 6 of the Protection of Children
from Sexual Offences (POCSO) Act 2012 was framed against him to which
he pleaded not guilty and claimed trial.
5. To prove its case against the accused and discharge its burden, the
prosecution examined twelve witnesses before the learned Trial Court,
whose testimonies have been discussed in the impugned judgment as under:
“ PW-1/‘S’ (Victim) supported the prosecution’s
case. She gave a detailed account of the incident and
mentioned that accused committed penetrative
sexual assault upon her after removing her clothes.
She identified the accused in the court and stated
that her statement was recorded under Section 164
Cr.P.C.
PW-2/Dr. Darshana (Senior Resident, Department
of Obstetrics and Gynecology, AIIMS Hospital)
deposed that she medically examined the victim and
prepared the MLC which is Exhibit PW-2/1. She
mentioned that during the internal gynecological
examination, the hymen of the victim was found torn
but there was no fresh tear. She mentioned about
lifting samples from the body of the victim and
stated that the parcels containing the sealed
samples were handed over to the police alongwith
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the sample seal.
PW-3/‘G’ (Mother of the victim) deposed that the
victim complained of pain in her private parts at the
time when she was giving bath to her. She mentioned
that she made inquiries from the victim, who
disclosed her that a person named ‘pakad’ (accused
herein), living in the neighborhood, had done wrong
act with her. She mentioned that she went to the
police station alongwith the victim and her husband,
where the statement of the victim was recorded. She
mentioned about the medical examination of the
victim and identified the accused in the court. She
deposed that the real name of accused is Navratan
but he was also known by his nickname ‘pakad’.
PW-4/Akbar Abbas (Principal, SDMC School,
Central Zone, Shyam Nagar, New Delhi) produced
original record from the school of the victim. He
mentioned that the victim was admitted in the school
in 1st standard and her name was entered in the
admission register at Serial No.4624. He stated that
the victim left the school on 22.07.2016 while she
was studying in 4th standard. He mentioned that as
per the school records, the date of birth of the victim
is 25.03.2008. The copy of the relevant entry in the
admission register is Exhibit PW-4/C while the
admission form is Exhibit PW-4/B. The witness
mentioned that the date of birth of the victim was
entered in the school record on the basis of an
affidavit furnished by the mother of the victim. The
said affidavit is Exhibit PW-4/X. He mentioned that
he handed over the attested copies of the record as
well as certificate of date of birth of the victim
(issued by the Principal of school) to the police
which is Exhibit PW4/A.
PW-5/Ajit Singh (Landlord of victim and accused)
mentioned that family of the victim and accused
were his tenants and they were residing in separate
rooms on the same floor of the building. He
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mentioned that at the time of alleged incident,
accused used to reside in his room alongwith 2–3
friends but he vacated the room soon after the
registration of FIR.
PW-6/Lady Constable Sarita (Police official, who
collected samples of the victim from the hospital)
stated that on the directions of the Investigating
Officer, she got the victim medically examined at
AIIMS Hospital and collected her MLC. She
mentioned that she collected the sealed samples as
well as the MLC of the victim and handed them over
to the Investigating Officer/Sub-Inspector Bijender
Singh. She stated that the Investigating Officer
seized the samples vide seizure memo Exhibit PW-
6/A.
PW-7/Lady Constable Asha (Police official who
took the victim to Hospital for medical examination)
stated that on the directions of the Investigating
Officer, she took the victim for medical examination
to AIIMS Hospital. She mentioned that after
sometime, Lady Constable Sarita also arrived at the
hospital. She deposed about the medical
examination of the victim.
PW-8/Lady Constable Shashi Bala (Witness of
initial investigation) deposed that she accompanied
the Investigating Officer during the initial
investigation. She mentioned that on 17.06.2016,
she went alongwith the victim to the court, where
her statement was recorded under Section 164
Cr.P.C. She mentioned that she joined the
investigation on 22.06.2016 and the Investigating
Officer prepared the site plan in her presence.
PW-9/Constable Ram Avtar (Witness of
registration of FIR) mentioned that on 16.06.2016
while he was present at Police Post of Okhla
Industrial Area Phase-III, Investigating
Officer/Sub-Inspector Bijender Nagar handed him
over a rukka for getting the FIR registered. He
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mentioned that he took the rukka to the police
station and got the FIR registered.
PW-10/Inspector Kiran Sood (First Investigating
Officer) stated that she recorded the statement of the
victim which is Exhibit PW-1/A. She mentioned
about the registration of FIR and stated that
thereafter, the investigation was marked to Sub-
Inspector Bijender.
PW-11/Sub-Inspector Kala Joshi (Third
Investigating Officer) deposed that she deposited
the sealed samples at the FSL through Constable
Ravi and prepared the charge-sheet. She mentioned
about completing the formalities and filing the
charge-sheet in the court.
PW-12/Sub-Inspector Bijender Singh (Second
Investigating Officer) justified the investigation
carried out by him. He mentioned about the
registration of FIR and the medical examination of
victim. He stated about the arrest of accused and
mentioned about his medical examination. He
deposed about the seizure memos prepared by him
and mentioned about recording the statements of the
witnesses. He stated that the documents disclosing
the date of birth of the victim were collected from
her school. He mentioned about preparing the site
plan (Exhibit PW-12/F). He stated that the
investigation was transferred to Sub-Inspector Kala
Joshi on 05.07.2016.”
6. On the completion of prosecution evidence, examination of accused
U/s 313 Cr.P.C. was conducted on 12.10.2020, during his examination, he
denied all the incriminating evidence and took the defence of false
implication. He came up with a version that there used to be frequent quarrels
between him and the family of the victim and in order to settle the score, the
victim has falsely implicated him in the present case. Thereafter, the accused
opted to lead Defence Evidence and matter was listed for Defence Evidence.
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The discussion regarding the defence witnesses by the learned Trial Court is
reproduced hereinbelow:
“DW-1 Mahipal Singh (friend of accused) stated
that around four years back, he used to reside in a
room on the second floor of the building at B-Block,
Harkesh Nagar, New Delhi. He mentioned that at
that time, accused was residing in the adjacent room
on the same floor of the building and victim was also
residing along with her family on the same floor. He
mentioned that the mother of the victim had to
solemnize marriage of her elder daughter and for
that purpose, she required money. He mentioned
that the mother of the victim requested him that he
should request accused to give her a loan of
Rs.20,000/- as the accused had made a withdrawal
from his Provident Fund. He mentioned that on his
request, accused handed over a sum of Rs.20,000/-
to the mother of the victim. He stated that after this
transaction, he was constrained to go to his native
place as his mother was not well. He mentioned that
after he left for his native village, accused kept a
person named Kanhaiya in his room and they
started residing together. He mentioned that he
came to know that some quarrel took place between
Kanhaiya and the elder sister of the victim and
during this quarrel, Kanhaiya slapped the elder
sister of the victim. He mentioned that after this
quarrel, Kanhaiya left the room and the mother of
the victim falsely implicated the accused in the
present case to avoid the repayment of loan.”
th
7. The learned Trial Court, vide the impugned judgment dated 6
November 2020, convicted the appellant and held as under:
“ 29. I have reached the conclusion that
prosecution’s case stands proved beyond
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reasonable doubt while on the other hand, defence
taken by the accused is improbable and
unbelievable. The victim gave a detailed account of
the incident mentioning that accused took her to a
room and committed penetrative sexual assault
upon her by inserting his penis in her vagina. It is
established beyond reasonable doubt that on
05.06.2016, at around 02.00 PM, accused
wrongfully committed penetrative sexual assault
upon the victim at House No.-52, Harkesh Nagar,
New Delhi. By committing penetrative sexual
assault on an eight years old girl, accused
committed aggravated penetrative sexual assault as
defined under Section 5 (m) of the POCSO Act,
2012, which is punishable under Section 6 of the
Act. I have no hesitation in holding the accused
Navratan guilty of committing offence punishable
under Section 6 of the POCSO Act, 2012.
30. Be heard separately on the point of sentence.”
8. Consequent upon the judgment of conviction, the learned Trial Court,
th
vide Order on Sentence dated 10 December 2020, imposed the following
sentence upon the appellant:
" 7. Turning to the mitigating circumstances, convict
is stated to be a married man having a large family
to support. No previous involvement of the convict
has been alleged or proved. Keeping in view the
totality of circumstances, I am of the considered
opinion that ends of justice would meet, in case,
convict Navratan is sentenced to undergo Rigorous
Imprisonment (RI) for a period of 20 (twenty) years
and a fine of Rs.10,000/- (Rupees Ten Thousand
only) for committing the offence under Section 6 of
the POCSO Act. In default of payment of fine, the
convict shall further undergo Simple Imprisonment
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(SI) for a period of 6 (six) months. Benefit of Section
428 Cr.P.C shall be extended to him. This order be
treated as Custody Warrant and no separate
warrant shall be issued.
…
10. The matter appears to be a fit case where
compensation needs to be awarded to the victim who
has suffered mental and physical trauma on account
of penetrative sexual assault committed by the
convict. An application in this regard moved by the
counsel for the victim/complainant is on record. It
has been mentioned in the application that on
account of penetrative sexual assault on the victim,
her mother was constrained to leave her job and
remain at the house to take care of her
daughter/victim. It has further been mentioned in
the application that on account of mental and
physical trauma caused due to the penetrative
sexual assault committed by the convict, victim
discontinued her studies and stayed at the house for
long time. Counsel for the victim has submitted that
the father of the victim is suffering from
Tuberculosis and he is earning a meagre sum of
Rs.8000/- per month by doing job in a factory. The
victim was just eight years old at the time of sexual
assault. Report about the financial status and
background of the family of the victim was
summoned. Sub-Inspector Manoj Bhaskar
submitted report which revealed that victim comes
from a very poor background. It has been mentioned
in the report that presently, the father of the victim
is working as a House-Keeper and he earns around
Rs.7,000/- to Rs.8,000/- per month and her mother
is a housewife. Report further reveals that victim
has two brothers age 15 years and 20 years
respectively and her family resides in a rented
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accommodation. Considering the mental and
physical trauma caused to the victim, I am of the
considered opinion that a compensation of
Rs.4,00,000/- (Rupees Four Lakh only) needs to be
awarded to her. This compensation is required for
nutrition needs, rehabilitation and studies of the
victim. Out of the said compensation, a sum of
Rs.50,000/- (Rupees Fifty Thousand only) shall
immediately be released to the victim while the
remaining amount shall be kept in the form of seven
FDRs each amounting to Rs.50,000/- (Rupees Fifty
Thousand only) in the name of the victim and the
same shall be released to her on attaining the age of
18 years. The victim can move an appropriate
application before the court as and when the need
arises for liquidating the FDRs. Copy of the
judgment and order on the point of sentence be sent
to Secretary, DLSA (South-East) for necessary
compliance alongwith details of the
victim/complainant. IO/SJ, PS Okhla Industrial
Area is directed to ensure the presence of victim
before Secretary, DLSA (South-East).”
9. Aggrieved by the aforesaid impugned judgment and order on
sentence, the appellant has challenged both before this Court.
Submissions on Behalf of the Appellant
10. Learned counsel for the appellant submits that the impugned
judgment of conviction and order on sentence are contrary to the facts and
evidence on record, as the learned Trial Court has failed to appreciate the
material contradictions and inconsistencies in the prosecution’s case. It is
contended that the learned Trial Court has erroneously shifted the burden
of proof upon the appellant, whereas the prosecution was required to
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establish the guilt of the appellant beyond reasonable doubt.
11. Learned counsel for the appellant further submits that the testimony
of the prosecutrix and her mother suffers from material contradictions and
does not inspire confidence.
12. Learned counsel submits that, in her examination-in-chief, the
prosecutrix had deposed that the appellant had committed vaginal
intercourse with her, whereas, upon being asked leading questions by the
learned Public Prosecutor, she stated that the appellant had committed anal
intercourse with her.
13. Learned counsel for the appellant further submits that the testimony
of the prosecutrix, being that of a child witness aged about eight years at
the time of the alleged incident, is required to be scrutinised with greater
caution, as a child witness is susceptible to tutoring and external influence.
Reliance in this regard is placed upon the judgments of the Hon’ble
Supreme Court in Pradeep v. State of Haryana, 2023 SCC OnLine SC
777 , and Pramila v. State of Uttar Pradesh , (2021) 12 SCC 550 , to contend
that where the testimony of a child witness suffers from material
inconsistencies and the possibility of tutoring cannot be ruled out, it would
be unsafe to place implicit reliance upon such testimony for sustaining a
conviction.
14. Learned counsel further submits that there is an unexplained delay in
the reporting of the alleged incident. It is pointed out that while the alleged
incident is stated to have taken place on 05.06.2016, the same was reported
to the police only on 16.06.2016. It is contended that the delay in lodging
the FIR, coupled with the inconsistencies in the statements of the
prosecutrix and her mother regarding the disclosure of the incident, renders
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the prosecution’s case doubtful and indicates that the appellant has been
falsely implicated.
15. Learned counsel for the appellant submits that the medical and
forensic evidence does not corroborate the allegations levelled against the
appellant. That as per the MLC dated 16.06.2016, there was no fresh tear
of the hymen and no injury mark was noticed. Further, the medical
examination recorded that there was an attempt at penetration by the penis
and finger, but penetration was not completed. It is submitted that the
aforesaid findings are inconsistent with the allegations made by the
prosecutrix. Learned counsel further places reliance upon the FSL report
dated 30.09.2016, wherein semen was not detected in the vaginal swab and
vaginal slide, and no male DNA profile could be generated from the
samples collected from the prosecutrix.
16. Learned counsel for the appellant also submits that the learned Trial
Court has failed to appreciate the defence evidence led on behalf of the
appellant. In this regard, reliance is placed upon the testimony of DW-1,
Mahipal Singh, who deposed that the appellant had, at his instance,
advanced a loan of Rs. 20,000/- to the mother of the prosecutrix. It is
contended that when the appellant sought repayment of the said amount, he
was falsely implicated in the present case on account of the ensuing dispute
between the families.
17. Learned counsel for the appellant submits that the prosecution’s case
is riddled with material contradictions, unexplained circumstances and
inconsistencies between the ocular, medical and forensic evidence, which
have not been duly considered by the learned Trial Court. Accordingly, it
is prayed that the impugned judgment of conviction dated 06.11.2020 and
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order on sentence dated 10.12.2020 be set aside and the appellant be
acquitted.
18. Learned counsel for the appellant, in the alternative and without
prejudice to the submissions advanced on the merits of the appeal, also
prayed for leniency in the matter of sentence, submitting that the appellant
has already undergone approximately 11 years of incarceration including
remission. It is, therefore, prayed that a lenient view may be taken and the
sentence imposed upon the appellant be suitably reduced to the time already
undergone.
Submissions on behalf of the Respondents
19. Per contra, Learned APP for the State submits that the learned Trial
Court has duly appreciated the testimony of the prosecutrix, which has
remained consistent on the material particulars of the incident. It is
submitted that the prosecutrix has categorically narrated the manner in
which the appellant took her inside his room, subjected her to sexual assault
and threatened her with dire consequences in case she disclosed the incident
to anyone. The discrepancies sought to be highlighted by the appellant are
minor in nature and cannot be expected to be absent in the testimony of a
child witness who was approximately eight years of age at the time of the
incident.
20. Learned APP further submits that the delay in reporting the incident
stands duly explained by the circumstances in which the prosecutrix
initially refrained from disclosing the incident on account of the threats
extended by the appellant. It is submitted that the incident came to light
when the mother of the prosecutrix noticed discomfort in her private parts
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while bathing her, whereupon the prosecutrix disclosed the incident to her.
The subsequent reporting of the matter to the police lends assurance to the
prosecution version. It is further submitted that the absence of a male DNA
profile from the vaginal swab and vaginal smear of the prosecutrix cannot,
by itself, be a ground to discard her otherwise cogent and consistent
testimony.
21. Learned Amicus Curiae appearing on behalf of the victim submits
that the medical evidence does not contradict the prosecution version,
particularly in view of the MLC of the prosecutrix, wherein her hymen was
recorded as torn/not intact.
22. Learned Amicus Curiae further submits that the absence of a fresh
tear cannot, by itself, discredit the testimony of the prosecutrix or negate
the occurrence of the incident, particularly when her testimony has
remained consistent on the material aspects.
23. Learned Amicus Curiae further submits that the defence of false
implication on account of an alleged loan of Rs.20,000/- remains wholly
unsubstantiated. It is submitted that the suggestion put to the mother of the
prosecutrix during her cross-examination was materially different from the
version subsequently sought to be established through DW-1. It is further
submitted that DW-1 admitted that he had neither demanded repayment of
the alleged loan nor had the appellant informed him that the amount
remained unpaid. Moreover, the appellant did not summon or produce any
relevant provident fund records to substantiate the alleged source of the
loan. Accordingly, it is submitted that the defence of false implication has
no basis and was rightly rejected by the learned Trial Court.
24. Learned APP for the State, accordingly, submits that the findings
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returned by the learned Trial Court are based on a proper appreciation of
the evidence on record and do not warrant any interference by this Court. It
is, therefore, prayed that the present appeal be dismissed.
Findings and Analysis
25. This Court has considered the rival submissions advanced on behalf
of the parties and has examined the evidence on record in the light of the
grounds urged in the present appeal.
Age of the prosecutrix
26. At the outset, the age of the prosecutrix on the date of the incident
requires consideration. The prosecution relied upon the testimony of PW-
4, the Principal of the school where the prosecutrix was studying, who
produced the school record and deposed as under:
“I am working as Principal in the abovesaid
school since 08.3.2011. Today I have brought
summoned record pertaining to student namely
‘S’ D/o Sh. ‘RK’. As per record, aforesaid student
was got admitted by her mother in our school in
class 1st. Her name was entered in the admission
register at serial no. 4624. The student had left
the school on 22.07.2016 when she was studying
in 4th class. As per record, the date of the birth
of the student is 25.03.2008 which was recorded
on the basis of affidavit of the student submitted
by her mother which is Ex. PW 4/X. The copies of
the aforesaid records were also provided to
police officials by me vide certificate dated
04.07.2016 which is Ex. PW 4/A and bears my
signature at point A. The copy of admission form
is Ex PW4/B (OSR) bearing my signature at point
A. Copy of admission register is Ex PW4/C (OSR)
bearing my signature at point A.”
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27. The determination of the age of a child victim under the POCSO Act
has to be undertaken in accordance with the statutory framework. In P.
Yuvaprakash v. State , 2023 SCC Online SC 846 , the Hon’ble Supreme
Court reiterated the prescribed order of preference for age-related
documents and emphasised that the prosecution must establish the age of
the victim through legally acceptable material. The mere production of a
school document does not conclude the inquiry; its evidentiary value has to
be assessed with reference to the source and basis of the date-of-birth entry.
The same principle has been reiterated in Birka Shiva v. State of
Telangana , 2025 SCC Online SC 1454 , wherein the Hon’ble Supreme
Court held that although an entry in a school register may be admissible, its
probative value depends upon the information on the basis of which it was
recorded and the person who supplied such information.
28. In the present case, the prosecution has not relied upon an
unexplained school entry in isolation. PW-4 produced the original school
record, including the admission register and the admission form (Exhibit
PW-4/B). The record further includes the affidavit furnished by the mother
of the prosecutrix, on the basis of which her date of birth was entered in the
school record (Exhibit PW-4/X). The mother, PW-3, was also examined
and stated that the prosecutrix was about eight years of age in 2016 and was
studying in Class IV. Thus, the source of the date-of-birth entry is
identifiable and the school record is supported by the testimony of the very
parent who furnished the information. The evidentiary deficiency noticed
in P. Yuvaprakash (supra) and Birka Shiva (supra) , where the source or
basis of the school entry was not satisfactorily established, does not arise in
the same manner in the present case. The date of birth recorded is
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25.03.2008. On the date of the incident, i.e. 05.06.2016, the prosecutrix was
eight years, two months and eleven days old. The finding of the learned
Trial Court that she was below twelve years of age is, therefore, supported
by the evidence on record and does not call for interference.
Testimony of the prosecutrix and allegation of tutoring
29. The principal contention on behalf of the appellant is that the
testimony of the prosecutrix is inconsistent and that she was tutored by her
parents to falsely implicate him. It is submitted that the variations regarding
the manner in which she was taken to the room and the nature of the alleged
act render her testimony unreliable.
30. In her examination-in-chief, the prosecutrix narrated the occurrence
as follows:
“On a day I was playing on staircase, one uncle
came with chicks and asked me to bring one chick
to him. I took a chick from my house and put the
same to that uncle who was in another room which
belongs to his known person. He asked me to sit
there and removed my underwear and also removed
his underwear. After removing clothes, he inserted
his penis into my vagina and did wrong act with me.
I pushed him and came out of the room. I cried and
after wiping my tears came to my house and sat
there silently.”
31. The prosecutrix thus gave a specific account of penile-vaginal
penetration. She stated that she disclosed the incident to her parents, though
she could not recall whether it was on the same day or the following day.
During her cross-examination by the learned APP, she identified the
appellant as Navrattan, stated that he resided near her house and that the
incident occurred at about 2:00 PM on the fifth day of the month. She also
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stated that the appellant approached her while she was playing outside and
took her towards him after closing her mouth.
32. This Court has considered the variation regarding the circumstances
in which the prosecutrix was taken to the room. While in her examination-
in-chief she stated that the appellant asked her to bring a chick, during her
cross-examination by the learned APP she stated that he approached her
while she was playing outside and took her towards him after closing her
mouth. She, however, also affirmed that she had gone to the room after
bringing a chick from her house. These variations relate to the events
preceding the assault and do not displace her specific allegation of penile-
vaginal penetration.
33. The appellant has also relied upon the prosecutrix’s affirmative
answer to a question regarding insertion of the penis into her anus.
However, when the learned Trial Court immediately asked whether she
understood the meaning of the word “ ga*d ”, she answered in the negative.
34. The prosecutrix further stated that she had shown the place of
occurrence to the police and identified the appellant as the person who had
committed the wrong act with her. She also deposed regarding threats
allegedly extended by the appellant, both against disclosing the incident and
against her father after his release from jail. These statements are required
to be considered alongside the evidence regarding her disclosure to PW-3.
35. PW-3 was not an eyewitness but a witness to the disclosure made by
the prosecutrix. She stated that while bathing the child, when she touched
her private parts, the prosecutrix complained of pain and disclosed that a
person known as Pakad, residing in the neighbourhood, had committed a
wrong act with her. PW-3 deposed:
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“When I was giving bath to my daughter 'S' at our
house and when I had touched her private part she
complained of pain and told me that a person by the
name of Pakad living in our neighbourhood had
done wrong act with her.”
36. PW-3 further stated that, after her husband returned, they took the
prosecutrix to the police station. She identified the appellant as the person
known as Pakad. Her testimony lends support to the factum of the child’s
disclosure and the identification of the person to whom the allegation was
attributed. The use of the general expression “wrong act” by PW-3, as
opposed to the specific account given by the prosecutrix, does not constitute
a material contradiction, since PW-3 was only narrating what the child had
disclosed to her.
37. The allegation of tutoring also requires consideration. In Pradeep v.
State of Haryana, 2023 SCC OnLine SC 777 , the Hon’ble Supreme Court
held that the possibility of tutoring a child witness must be examined with
caution. However, the mere possibility of tutoring is not a ground to discard
the testimony. Corroboration is a rule of prudence and not an inflexible
requirement; the testimony must be scrutinised in the light of the
circumstances of the particular case.
38. In the present case, apart from the suggestion that the prosecutrix was
deposing falsely at the instance of her parents and in collusion with an
NGO, no material has been brought on record to establish tutoring. The
prosecutrix denied the suggestion. Her first disclosure, as deposed to by
PW-3, was made when she complained of pain while being bathed and
attributed the wrong act to a person known as Pakad, residing in the
neighbourhood. No prior dispute or demand by the family against the
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appellant has been established. The prosecutrix was also familiar with the
appellant, who resided in the neighbourhood. The variations in her account,
including those concerning the events preceding the assault and the
question regarding anal penetration, have been considered above. They do
not displace her specific allegation of penile-vaginal penetration. The plea
of tutoring, therefore, remains an unsubstantiated suggestion and does not
furnish a ground to discard her testimony.
Delay in disclosure and registration of FIR
39. The appellant has next contended that there was an unexplained
delay in reporting the incident. The occurrence is stated to have taken place
on 05.06.2016, whereas the matter was reported to the police on
16.06.2016. It is further pointed out that the prosecutrix could not
consistently state when she had disclosed the incident to her parents.
40. The prosecutrix could not recall whether she had disclosed the
incident on the same day or the following day. PW-3, however, explained
that the incident came to light when she was bathing the prosecutrix and the
child complained of pain in her private parts. The prosecution case is that
the disclosure was made to PW-3 on 15.06.2016 and the matter was
reported to the police on the following day. The prosecutrix also attributed
a threat to the appellant, stating that he had asked her not to disclose the
incident, failing which he would kill her. She further stated that, after the
appellant was apprehended, he threatened to kill her father after coming out
of jail.
41. The testimony of the prosecutrix contains some variation regarding
the precise nature and occasion of the threat. This Court has taken note of
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the same and does not proceed on the assumption that every part of the
threat account is entirely consistent. Nevertheless, the explanation
furnished by PW-3 regarding the circumstances in which the child disclosed
the incident, coupled with the tender age of the prosecutrix, provides
context to the delay. In State of Punjab v. Gurmit Singh , (1996) 2 SCC
384 , the Hon’ble Supreme Court cautioned that delay in reporting sexual
offences cannot be assessed by applying a mechanical or stereotyped
approach, as a victim or her family may take time before approaching the
police, having regard to the nature of the offence and the attendant social
and psychological circumstances. The Court is required to examine whether
the delay is explained in the facts of the particular case and whether it gives
rise to a genuine possibility of embellishment or false implication. In the
present case, the incident allegedly occurred on 05.06.2016; the child
complained of pain and disclosed the incident to her mother on 15.06.2016,
and the family approached the police on 16.06.2016. The sequence is
consistent with the explanation that the incident came to light when the
mother noticed the child’s discomfort while bathing her. The delay is not,
in these circumstances, unexplained, nor does the period by itself furnish a
basis to infer fabrication.
Medical and Forensic evidence
42. The appellant has further contended that the medical and forensic
evidence does not support the allegation of penetration. It is submitted that
the medical examination did not reveal any fresh tear or injury and that the
FSL report did not generate a male DNA profile from the vaginal samples
of the prosecutrix.
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43. PW-2, Dr. Darshana, proved the MLC of the prosecutrix, Exhibit
PW-2/A, prepared on 16.06.2016. Her deposition records:
“On local examination, hymen of the prosecutrix
was not intact and there was no fresh tear. Vaginal
smear was collected, sealed and was handed over to
accompanied constable along with the sample
seal.”
44. The MLC records that the hymen of the prosecutrix was not intact,
though no fresh tear was noticed. It also mentions a cut scar mark over the
groin region. Since the medical examination was conducted on 16.06.2016,
i.e., eleven days after the alleged incident, and no opinion was given by the
examining doctor regarding the age or cause of the scar, the same can or
cannot be conclusively attributed to the alleged occurrence. However, the
absence of a fresh tear must be appreciated in the context of the time gap
between the incident and the medical examination. A minor tear or injury
may heal during such an intervening period, and the absence of a fresh
injury after eleven days cannot, by itself, negate the allegation of
penetration.
45. In this regard, reliance may also be placed on Sunil Kumar v. State ,
2019 SCC OnLine Del 12300 , wherein, while examining the medical
evidence and the anatomical features of a small child, the Coordinate bench
of this Court observed:
“After examining the testimony of Dr Deepshikha
and the MLC of the prosecutrix (Ext. PW 10/A) it is
observed that the hymen of the victim was torn and
there was redness around her hymen. Further there
were two abrasions on her palm and one on the
forehead. Herein it is relevant to highlight that as
per the Modi's Textbook of Medical Jurisprudence
and Toxicology extracted hereinabove records that
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an adult penis cannot penetrate the vagina of a
small child and in rare cases of great violence the
organs may be forcibly introduced. As in small
children partial penetration may generally cause
redness and inflammation around the hymen. This
aforesaid position has also been noted in Parikhs's
textbook of Medical Jurisprudence, Forensic
Medicine and Toxicology.”
46. The aforesaid observations are relevant while appreciating the
medical evidence in the present case. The anatomical features of a small
child and the possibility of partial penetration have to be borne in mind
while examining the absence of visible injuries. In the present case, the
hymen was found to be not intact. The finding regarding the condition of
the hymen, when considered alongside the specific account of penetration
given by the prosecutrix, is a relevant circumstance supporting her version.
47. In Radha Krishna Nagesh v. State of Andhra Pradesh , (2013) 11
SCC 688 , the Hon'ble Supreme Court held that an intact hymen or the
absence of an actual wound is not conclusive of the fact that a minor girl
was not subjected to rape. The Court recognised that penetration in the case
of a minor girl may not invariably result in tearing of the hymen. The same
principle was reiterated in State of Himachal Pradesh v. Manga Singh ,
(2019) 16 SCC 759 , wherein it was held that the absence of hymenal
rupture or external injuries does not, by itself, negate sexual assault.
Applying the aforesaid principles, the absence of a fresh tear in the present
case, particularly when the examination was conducted eleven days after
the incident, cannot be regarded as a circumstance inconsistent with the
prosecutrix's specific account of penetration.
48. As regards the FSL report, it records that semen was not detected in
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the vaginal swab and vaginal smear. It further records that no male DNA
profile could be generated from these samples. Consequently, no DNA
profile was available for comparison with that of the appellant. However,
the evidentiary value of this finding must be appreciated having regard to
the fact that the medical examination and collection of samples took place
eleven days after the alleged incident. During this intervening period, the
possibility of biological material having been lost, washed away or
otherwise degraded cannot be ruled out. The possibility that the prosecutrix
may have bathed during this period is also a relevant consideration.
49. It is pertinent to clarify that the FSL report does not record a DNA
mismatch between the appellant and the biological samples of the
prosecutrix. Rather, it records that no male DNA profile could be generated
at all. In the absence of a usable profile, the question of comparison with
the appellant's DNA did not arise. The report, therefore, neither establishes
the appellant's involvement through DNA evidence nor excludes him as the
perpetrator. Its evidentiary value is consequently limited to the findings
actually recorded therein.
50. In Sunil v. State of Madhya Pradesh , (2017) 4 SCC 393 , the Hon'ble
Supreme Court recognised that the absence of a usable DNA profile does
not, by itself, determine the prosecution case. The forensic evidence has to
be appreciated in the context of the entire evidence on record. In the present
case, the absence of a male DNA profile, particularly when the samples
were collected eleven days after the alleged incident, cannot be treated as
affirmative evidence that the alleged act did not take place or that the
appellant was not involved.
51. The learned Trial Court has recorded a specific finding that the
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prosecutrix gave a detailed account of the incident, including insertion of
the appellant's penis into her vagina, and accepted her testimony. This Court
has examined the said finding in the light of the medical and forensic
evidence. The MLC records that the hymen of the prosecutrix was not
intact, though no fresh tear was noticed. The absence of a fresh tear,
particularly when the examination was conducted eleven days after the
incident, does not render the allegation of penetration improbable. The FSL
report, on the other hand, does not furnish a DNA profile capable of either
identifying or excluding the appellant. Neither of these circumstances
creates a contradiction with the prosecutrix's account so as to discredit her
testimony. It is clarified that the medical and forensic evidence is not being
treated as independent proof of the appellant's involvement; rather, the
same does not discredit the ocular account accepted by the learned Trial
Court.
52. Accordingly, the appellant has failed to demonstrate that the learned
Trial Court overlooked any medical or forensic circumstance which would
render its findings unsustainable. The absence of a fresh tear and the
absence of a male DNA profile, when appreciated in the factual
circumstances of the present case, do not furnish any ground to disbelieve
the prosecutrix or interfere with the finding of guilt.
False implication on account of alleged loan
53. The appellant has also sought to establish that he was falsely
implicated on account of an alleged loan of Rs.20,000/- advanced to PW-3
for the marriage of her elder daughter. In support of this plea, reliance has
been placed upon the testimony of DW-1, Mahipal Singh. According to
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DW-1, PW-3 had requested him to ask the appellant to advance the amount
as a loan and the appellant had handed over the amount to her. He further
suggested that PW-3 subsequently implicated the appellant to avoid
repayment.
54. The defence version, however, has to be examined in the light of the
admissions made by DW-1 in cross-examination. He stated:
“I do not know if Navratan had demanded the
repayment of said loan. I never demanded the
repayment of the said loan. Vol. I was at my native
place. Accused Navratan never told me that Geeta
is not returning the sum of Rs.20,000/-.”
55. The aforesaid admission assumes significance. DW-1 could not state
whether the appellant had ever demanded repayment of the alleged loan.
He himself had never demanded repayment and admitted that the appellant
had never told him that PW-3 had failed to return the amount. DW-1 also
admitted that he was a close friend of the appellant and that the appellant's
family had asked him to depose in his favour. His version regarding the
alleged quarrel between Kanhaiya and the elder daughter of PW-3 was not
based on his personal knowledge, as he had admittedly learnt about it only
after returning from his native village.
56. PW-3 denied having borrowed Rs.20,000/- from the appellant or
DW-1 and also denied the suggestion that the appellant had been falsely
implicated to avoid repayment. The Investigating Officer, PW-12, stated
that no monetary transaction between the parties had come to his
knowledge during the investigation. It is not the absence of a written loan
document alone which renders the defence doubtful. The material
circumstance is that the witness produced by the appellant could not
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establish any demand for repayment, any dispute concerning the alleged
amount, or any grievance expressed by the appellant which could provide
a basis for the alleged false implication. The alleged monetary transaction,
therefore, does not furnish a credible explanation for the prosecutrix or her
family falsely implicating the appellant.
Proportionality and quantum of sentence
57. The incident occurred on 05.06.2016. Accordingly, the sentence is
governed by Section 6 of the POCSO Act as it stood on the date of the
offence, prescribing a minimum sentence of ten years, extendable to
imprisonment for life. The enhancement of the minimum sentence to
twenty years by the 2019 Amendment is inapplicable.
58. In Gopal Singh v. State of Uttarakhand , (2013) 7 SCC 545 , the
Supreme Court held that sentencing must be guided by proportionality,
having regard to the gravity of the offence, culpability, antecedents, age,
and potential for reformation of the accused.
59. In the present case, having regard to the tender age of the victim and
the nature of the offence, a substantial custodial sentence is warranted. At
the same time, the appellant’s satisfactory conduct in custody and absence
of established criminal antecedents merit consideration. Balancing these
factors, and having regard to the sentencing framework under the
unamended Section 6 of the POCSO Act, a sentence of fifteen years’
rigorous imprisonment is proportionate and adequate to meet the ends of
justice.
Conclusion
60. For the reasons discussed hereinabove, this Court finds no perversity
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or material misappreciation of evidence in the findings returned by the
learned Trial Court. The prosecution has established the charge under
Section 6 of the POCSO Act beyond reasonable doubt. Accordingly, the
conviction of the appellant is upheld.
61. While the conviction warrants no interference, this Court has
independently examined the proportionality of the sentence, having regard
to the gravity of the offence, the circumstances of the appellant and the
applicable sentencing framework. Upon balancing the aggravating and
mitigating circumstances, this Court finds that a sentence of fifteen years’
rigorous imprisonment would be proportionate and adequate to meet the
ends of justice.
62. Consequently, the sentence of twenty years’ rigorous imprisonment
is reduced to fifteen years’ rigorous imprisonment. The fine of ₹10,000/-
and the default sentence of simple imprisonment for six months shall
remain unaltered.
63. Accordingly, the present appeal is partly allowed to the aforesaid
extent and disposed of.
64. Pending applications, if any, stand disposed of.
65. Let a copy of this judgment be sent to the learned Trial Court and the
concerned Jail Superintendent for information and necessary compliance.
MADHU JAIN
(JUDGE)
NOVEMBER 5, 2026/YT
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