Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 30.04.2026
Judgment pronounced on: 05.05.2026
+ CRL.A. 610/2020
RAJENDER SHARMA .....Appellant
Through: Mr. Dhruva Bhagat, Advocate
versus
THE STATE (GOVT OF NCT) DELHI .....Respondent
Through: Mr. Ajay Vikram Singh, APP for
State with SI Rahul Rathi
Ms. Aishwarya Rao, Advocate with
Ms. Mansi Rao, Advocate for Victim
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973, (the Cr.P.C.) read with 383 Cr.P.C., the
sole accused, in Sessions Case No. 6565/2016 on the file of the
learned Additional Sessions Judge-04 (POCSO), South District,
Saket Courts, New Delhi, challenges the judgement dated
16.03.2020 and the order on sentence dated 26.05.2020 as per
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which, he has been convicted and sentenced for the offence
punishable under Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (the PoCSO Act) and Section 376(2)(f)
of the Indian Penal Code, 1860 (the IPC).
2. The case of the prosecution is that on 13.01.2013, at D-
29/3, Rashtriya Marg, Sangam Vihar, the accused, a tenant in the
house of PW1, the victim aged 6 years, committed penetrative
sexual assault on her.
3. On the basis of Exhibit PW1/A FIS/FIR of PW1, given
on 14.01.2013, Crime No. 19/2013, Sangam Vihar police station,
that is, Ex. PW3/A, FIR was registered by PW3, Duty
Officer/Station House Officer. PW10, Sub-Inspector, C.R. Park
police station conducted the investigation into the crime and
submitted the charge-sheet/final report before the jurisdictional
magistrate alleging commission of the offences punishable under
Section 376 IPC and Section 4 of the PoCSO.
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4. When the accused was produced before the
jurisdictional magistrate (Metropolitan Magistrate-03/MM), all the
copies of the prosecution records were furnished to him as
contemplated under 207 CrPC. Vide order dated 04.04.2013, the
MM court committed the matter to the Court of Session.
5. The trial court, after hearing both sides, as per order
dated 06.05.2013 framed a charge under Section 376 IPC and
Section 4 of the PoCSO Act, which was read over and explained to
the accused, to which he pleaded not guilty. On 07.12.2018, the
Charge was altered and Charge framed against the accused for the
offences punishable under Section 376(2) IPC and Section 6 read
with Section 5(m) of the PoCSO Act, which was read over and
explained to the accused, to which he pleaded not guilty.
6. On behalf of the prosecution, PW 1 to 13 were
examined and Exts. PW1/A, PW2/A-C, PW2/DA, PW3/A,
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PW4/A, PW5/A, PW7/A-C, PW9/A-C, PW11/A-B, PW12/A, PW
14/A, PW16/A, PX-1 and P1-9 were marked in support of the case.
7. After questioning the accused under Section 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused ( See Moidu K.
vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker
2888 ). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C. has caused any prejudice to him.
8. On behalf of the accused, DW 1 and DW2 were
examined. No documentary evidence was adduced by the accused.
9. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court, vide the
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impugned judgement dated 16.03.2020 held the accused guilty of
offences punishable under Section 376(2)(f) IPC and Section 6 of
the PoCSO Act. Vide order on sentence dated 26.05.2020, the
accused has been sentenced to undergo rigorous imprisonment for
a period of 20 years and to a fine of ₹ 3,000 and in default of
payment of fine, to undergo simple imprisonment of 1 month.
Aggrieved, the appellant/accused has preferred this present appeal.
10. The learned counsel for the appellant/accused
submitted that there are several contradictions and improvements
in the statements of PW 1, that is, the FIS/FIR; her statement
recorded under Section 164 of the Cr.P.C., and her oral testimony
before the Court. It was submitted that the accused has been falsely
implicated by PW1, at the behest of PW2, her maternal
grandmother. PW 2 wanted the accused to vacate the house over a
rent dispute and thus she tutored PW 1 to falsely implicate the
accused. It was submitted that there is discrepancy regarding the
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place of the incident. The garments of neither the victim nor the
accused had been seized nor sent for medical examination and thus
the result in the Forensic Science Laboratory (FSL) report is liable
to be ignored/rejected. The materials on record are insufficient to
find the appellant/accused guilty and hence he is entitled to be
acquitted.
11. Per contra , it was submitted by the learned Additional
Public Prosecutor that PW1 has consistently stood by the
prosecution case. The witnesses have given consistent statements
all throughout the proceedings. Their testimony has not been
discredited in any way and hence, there is no reason(s) to
disbelieve them. It was also submitted that DW1 and DW2 are
close relatives of the accused and hence interested witnesses.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in this
appeal is whether there is any infirmity in the conviction entered
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and sentence passed by the trial court warranting an interference
by this Court.
14. I shall first briefly refer to the evidence on record relied
on by the prosecution in support of the case. The incident in this
case is alleged to have taken place on 13.01.2013, at D-29/3,
Rashtriya Marg, Sangam Vihar, the residence of PW1. Ext.
PW1/A FIS/FIR of PW1, the victim, was recorded on 14.01.2013.
In the FIS, PW1 has stated thus:- “…. Last night, when I went
downstairs to use the bathroom, I met Rajinder uncle (the accused)
on the stairs, who has been living in our house as a tenant for a
long time. Rajinder uncle picked me up in his arms and took me to
the bathroom. Rajinder uncle removed my pants and underwear,
and took me to the back lane ( gali) and made me sit on his lap.
Rajinder uncle started putting his private part ( su-su ) in my private
part. ( िफर uncle अपनी सु - सु मेरी सु - सु म लगाने लगे। ) After some
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time, he let me go. My private part started to hurt and I told my
maternal grandmother ( Nani ).”
14.1. Ext. PW 7/A, PW1’s statement u/s 164 Cr.P.C., is seen
recorded on 14.01.2013. In the said statement PW 1 states thus:-
“Last night when I was going to use the bathroom, Rajinder uncle
pulled me and took me into the bathroom. I was wearing a sweater
and pajama . Rajinder uncle took off my pajama and underwear.
He put his private part ( su-su ) into my private part. He touched my
private part with his finger too. (… उ ोंने मेरी सू - सू म अपनी सू - सू
डाली। उ ोंने मेरी सुसु को उँगली से भी छुआ था। …) I was in lot of
pain but I did not cry. Rajinder uncle left me there. Then I went to
my maternal grandmother ( Nani-Mammi ) and told her everything.
I also told the police. I went to the doctor.”
15. PW 1, when examined before the court, stood by her
version in the FIS/FIR and in her statement under Section 164
Cr.P.C.
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16. PW 2, the maternal grandmother of PW1, deposed that
on 13.01.2013 while she was cooking food, PW1 went to the toilet
situated downstairs. PW1 returned after about an hour in bad shape
and complaining about severe pain in her private part. When she
enquired the matter, PW1 told her that the accused had placed his
private part into her private part. She caught the accused and took
him to the police station. In the cross-examination, PW2 deposed
that the incident took place at about 07:00 to 08:00 p.m. Apart
from the accused, there were five other tenants in the house. But
none of them were present in the house at that time. There were no
blood stains on the clothes of PW1. However, there was a mark of
belt on the waist of PW 1. There were bruises on the abdomen of
PW1. PW2 also deposed that the toilet is situated within the plot
and one door of the toilet opens to the gali outside. The accused
had been her tenant for about two months before the incident. PW2
also deposed that PW 1 became unconscious due to the rape.
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According to PW2, the undergarment of PW 1 had been seized by
the police.
17. PW4, Senior Resident, AIIMS Hospital, New Delhi,
deposed that on 14.01.2013, she had examined PW1 and issued
Ext. PW4/A MLC which bears her signature. In the cross-
examination, PW4 deposed that there was an abrasion
approximately 1.5 x 0.5 cm on PW1’s pubis.
18. PW8, Constable, Paschim Vihar police station deposed
that on 13.01.2013, she had taken PW1 to the AIIMS Hospital for
medical examination. According to PW8, one sealed pullanda
containing the undergarment of the accused; one brown colour
envelope containing blood in gauze; one plastic container
containing penile swab and one plastic container containing
control swab all sealed with the seal of Department of Forensic
Medicine and Toxicology, AIIMS Hospital New Delhi were seized
in her presence as per Ext. PW16/A seizure memo. In the cross-
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examination, PW8 deposed that she does not remember how many
pullandas had been received and that she does not remember the
seal that were put on the pullandas .
19. PW9, Constable, Sangam Vihar police station, deposed
that on 14.01.2013, as directed by the Investigating Officer (IO),
he had taken the accused to AIIMS hospital for medical
examination. The accused was examined and his MLC was
prepared by the doctor. After the examination of the accused, the
doctor handed over two sealed pullandas along with sample seal.
Thereafter, he handed over the accused as well as the seals,
exhibits, and sample seal to Sub Inspector Kusum Dangi, (PW13),
who seized the same as per Ext. PW9/A seizure memo. The
accused was arrested by PW13 vide Ext. PW9/B arrest memo. In
the cross-examination, PW9 deposed that he had handed over the
exhibits along with sample seal to PW13 at the police station.
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20. PW10, Sub-Inspector, CR Park police station, deposed
that on 14.01.2013, as directed by the ACP, Ambedkar Nagar, she
went to Sangam Vihar police station where PW1 and PW2, her
nani and the accused were present. The accused was produced
before the court and he was remanded to judicial custody. PW10
further spoke of the various steps taken by her during the course of
investigation and on completion of investigation; she submitted the
final report/charge sheet against the accused.
21. PW11, Senior Scientific Officer (Biology), FSL Rohini,
New Delhi, deposed that on 21.01.2013, six sealed parcels were
received in his office. The seals were intact. After examining the
sample sent, he prepared Ext. PW11/A report.
22. PW13, Sub-Inspector, Kalkaji police station deposed
that on 14.01.2013, she received information from the Duty
Officer, Kalkaji police station asking her to report to Sangam
Vihar police station. She proceeded to Sangam Vihar police station
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where PW1, her nani and the accused were present. She recorded
Ext. PW1/A statement of PW1. The victim was thereafter sent for
medical examination along with Constable Poonam (PW8). After
conducting the medical examination of PW1, PW8 produced the
MLC of the victim as well as the exhibits which she seized as per
Ext. PW9/A seizure memo. Thereafter, the accused was sent for
medical examination along with PW9 Constable. After the medical
examination of the accused was conducted, PW9 produced the
MLC as well as four sealed parcels and one sample seal in the
hospital which she seized as Ext. PW16/A seizure memo. She
arrested the accused vide Ext. PW9/B arrest memo. She thereafter
handed over the case file to the SHO, Sangam Vihar police station
and she deposited the exhibits in the malkhana of the said station.
23. DW1 and DW2 were examined on behalf of the
accused. DW1, the brother-in-law of the accused, deposed that
during the period 2012-2013, he used to stay along with his brother
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Gore Lal and the accused at the first floor of D-29/3, Sangam
Vihar, New Delhi. There were seven rooms on the first floor, all of
which were occupied by tenants. There are four rooms on the
ground floor, out of which one was occupied by his landlord and
the rest three were occupied by tenants. There was only one toilet
for all the occupants which was situated on the ground floor. All
three of them doing carpentry work used to leave for work by
about 08:00-08:30 a.m. and return by 09:00-09:30 p.m. They
started living at the aforementioned address in October-November
2012. They were evicted when the FIR in this case was registered.
They used to pay rent of ₹1500/- per month. The landlady (PW2)
used to threaten them on a daily basis that she would call the
police as another tenant had agreed to pay rent of ₹3000/- per
month for the same room. He along with the accused; the landlord
and the landlady had gone to the Sangam Vihar police station in
the night of 13.01.2013 where a false and frivolous case had been
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registered against his brother-in-law/the accused. The police did
not register a case against him or his other brother as they acceded
to the demand of the landlady to vacate the room. However, the
accused fought with them and refused to vacate the room and
hence this false case has been registered against him. DW2, the
brother of DW1, supports the version of DW1.
24. The trial court has found the accused guilty of the
offences punishable under Section 376(2)(f) IPC and Section 6
POCSO Act. The question is whether the aforesaid evidence on
record is sufficient to find the appellant/accused guilty of the
offences charged against him. It is true that there is slight
discrepancy in the testimony of PW1 regarding the actual place of
occurrence. In the FIS/FIR, PW1 has a case that on the said day,
the accused took her to the bathroom, removed her clothes and
thereafter took her to the backlane ( gali ) and committed the sexual
assault. In the 164 statement and in the box, she deposed that the
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sexual assault took place inside the toilet. However, materials have
also come on record that one of the doors of the bathroom open to
a gali . PW1 stood by her case of sexual assault by the accused all
throughout in her statements, be it her FIS/FIR, the 164 statement,
or her testimony before the box. On going through her testimony
and statements, I do not find any reason(s) to disbelieve her
version. It is also true that PW2 in the box has a case that PW1 had
become unconscious after the rape. However, PW1 has no such
case. But PW1 has testified that due to the sexual assault by the
accused, she was in severe pain. PW1 and PW2 stood by the case
in the cross-examination also. The inconsistencies pointed out are
immaterial and the same has in no way affected the prosecution
case.
25. Now coming to the evidence regarding seizing of the
undergarments of PW1 and the accused. According to PW8, on
13.01.2013 she had taken PW1, the victim, to AIIMS hospital for
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her medical examination. PW8 does not speak about the seizure of
the undergarment or the samples drawn from PW1. On the other
hand, she testified regarding seizure of the undergarment of the
accused as well as the samples collected from the accused. She
further deposed that the undergarment as well as the other exhibits
relating to the accused were seized in her presence vide Ext.
PW16/A seizure memo. PW16/A reads thus:-
“ Seizure Memo
In the presence of following witnesses Ct. Hira Lal No. 1251/SE has
produced the exhibits after medical examination of accused Rajinder
Sharma S/o Jagdish Mistri R/o D-29/3 Block-D Sangam Vihar, N. Delhi,
Age 27 years vide MLC No. 435/13 dt. 14/1/13. All the exhibits are seized
through seizure memo as a necessary police proof. The details are as
follows:
1. One Pulanda containing underwear of accused sealed with the seal of
Deptt. of Forensic Medicine & Toxicology AIIMS Hospital, N. Delhi.
2. One Brown colour envelope containing blood in gauze of accused sealed
with the seal of Deptt. of Forensic Medicine & Toxicology AIIMS Hospital
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N. Delhi.
3. One Plastic container containing Penile Swab of accused sealed with the
seal of Deptt. of Forensic Medicine and Toxicology AIIMS Hospital N.
Delhi.
4. One Plastic container containing Control Swab of accused sealed with
the seal of Deptt. of Forensic Medicine and Toxicology AIIMS Hospital N.
Delhi.
5. One Sample Seal signed by doctor.
Witness:Poonam Produced By:
L/Ct. Poonam Ct. Hira Lal
No 3041/SE No. 1251/SE
PS Sangam Vihar (Signature)
S.I.Kusum Dangi
PS Kalkaji 14/1/13”
As per Ext. PW16/A, the aforesaid articles relating to the accused
were produced by PW9 before PW13, the I.O. The same has been
attested by PW8. PW9 on the other hand, deposed that he had
taken the accused to AIIMS hospital for medical examination and
after the examination, the doctor had handed over to him the MLC
as well as the samples drawn from the accused. According to PW9,
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these were seized by PW13 as per Ext. PW9/A seizure memo.
PW9/A seizure memo reads thus:-
“ Seizure Memo
In the presence of following witnesses Ct. Poonam No. 3041/SE has
produced the following exhibits. The same are seized through seizure memo
as a necessary police proof after medical examination of victim Ruby D/o
Ramesh Chand vide MLC No. 436/13 dt. 14/1/13. The details of exhibits are
as follows:-
1. One pulanda containing Perivaginal Smear for forensic examination of
victim sealed with the seal of CMO AIIMS Hospital N. Delhi.
2. One pulanda containing Perivaginal Smear for forensic examination
sealed with the seal of CMO AIIMS Hospital N. Delhi.
3. One sample seal signed by Dr. Manisha Sr. Gynae II, AIIMS Hospital, N.
Delhi..
Witness: Produced By:
Ct. Hira Lal L/Ct.Poonam Noojoyi/SI
No. 1251/SE PS Sangam Vihar
PS Sangam Vihar ‘B’
(Signature)
S.I.Kusum Dangi
P.S. Sangam Vihar(place)
PS Kalkaji 14/1/13”
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Apparently, PW9/A relates to the seizure of the samples drawn
from PW1, the victim. As per Ext. PW9/A, these were produced
by PW8 before PW13. PW8 never spoke about the samples of
PW1 being handed over to her by the doctor or her handing over
the same to PW13, the I.O. PW9 speaks of PW9/A which
apparently is relating to the victim and not that of the accused.
Therefore, the seizure of articles referred to in Ext. PW9/A and
PW16/A has not been proved as mere production and marking of
seizure memos will not prove the contents of the same It is only
when the witnesses speak of the same before the court, it becomes
substantive evidence and the seizure memos can only corroborate
their testimony.
26. Further PW9/A seizure memo does not speak of the
undergarment of PW1 though PW2, her grandmother has a case
that the same had also been seized. PW4/A MLC of PW1 prepared
by PW4 the doctor says thus:-“ panty (preserved as exhibit) and
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peri vaginal smear taken for forensic examination and handed
over to accompanying lady constable with sample of smear. ”
However, PW8 who is alleged to have taken PW1 to PW4 for
medical examination has no such case. PW9/A also does not speak
of the undergarment alleged to have been handed over by PW4 to
PW8. PW5, the doctor who examined the accused in Ext. PW5/A
says that along with the samples drawn an underwear sealed was
handed over to the I.O. along with the sample sealed. PW9 who is
alleged to have taken the accused for medical examination does
not speak about the undergarment being handed over to him by the
doctor. On the other hand, he has only testified that the doctor gave
him two sealed pullandas along with the sample seals. Therefore,
the evidence regarding the seizure of the undergarment as well as
seizure of samples from PW1 and the accused is not satisfactory.
That being the position, though the FSL report supports the
prosecution case, the same cannot be relied on as the materials on
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record regarding seizing of samples and exhibits are far from
satisfactory. However, the scientific evidence is only corroborative
evidence and it can only corroborate the testimony of the victim.
Here the testimony of PW1, the victim, is credible and believable
and, therefore, even if the scientific evidence cannot be relied on,
there is no reason to disbelieve the prosecution case.
27. It was further argued that Ext. PW4/A MLC says that
the hymen was intact. Therefore, it was argued that that this does
not tally with the version of PW1 who has a case of penetrative
sexual assault by the accused. This was pointed out as yet another
reason to disbelieve the prosecution case.
28. I am afraid, I disagree with the argument advanced by
the learned counsel for the appellant/accused because as per
Section 3(a) PoCSO Act, a person is said to commit penetrative
assault if he penetrates his penis to any extent into the vagina,
mouth, etc. of a child, the offence of penetrative sexual assault is
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made out. Therefore, it is not necessary that the hymen has to be
ruptured to make out an offence under Section 3(a) of the Act.
29. Ext. PW4/A medical certificate shows that PW1 had an
abrasion of 1.5 x 0.5 cm over pubis. This coupled with the
testimony of PW1 and PW2 is sufficient to prove the offences
charged against the accused. Coming to the defence evidence, it
cannot be believed that because there was a dispute regarding the
rent, PW2 had tutored her young grandchild to speak against the
accused. The defence put up seems to be quite improbable. From
the materials on record, I find no reason(s) to disbelieve the
prosecution case. Therefore, I find no infirmity in the findings of
the trial court regarding the guilt of the accused for the offences
punishable under Section 376(2)(f) IPC and Section 6 PoCSO Act.
30. Finally, the learned counsel for the appellant/ accused
submitted that in case this Court is not inclined to interfere with
the impugned judgment, leniency may be shown and the
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substantive sentence may be reduced to the term that the accused
has already served.
31. The incident took place on 13.01.2013. Section 6 of the
PoCSO Act as it then stood reads: “ whoever, commits aggravated
penetrative sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than 10 years but
which may extend to imprisonment for life and shall also be liable
to fine” . Going by the dictum in Ravinder Singh v. The State
Govt. of NCT of Delhi, (2024) 2 SCC 323, the trial court could
have imposed either the maximum sentence of life or if it was for a
term, for a period not exceeding 14 years. Here, the trial court
imposed a sentence of 20 years which apparently could not have
been done. Therefore, taking into account the facts and
circumstances of this case, I find that substantive sentence of 14
years would serve the ends of justice.
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32. In the result, the appeal is partly allowed. The
conclusion regarding the finding of guilt of the accused for
commission of the offences punishable under Section 376(2)(f)
IPC and Section 6 POCSO is confirmed. However, the substantive
sentence of imprisonment is modified from 20 years to 14 years.
33. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 05, 2026
p’ma/kd/mj
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