Ajay Kumar vs State (Nct Of Delhi)
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 15.04.2026
Judgment pronounced on:17.04.2026
+ CRL.A. 48/2017
AJAY KUMAR .....Appellant
Through: Mr. Ravi Tikania, Advocate.
Versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Monika, PS Alipur.
Mr. B. Badrinath, Advocate for
DSLSA.
Ms. Devika Mohan, Mr. Karan and
Mr. Dhruv Negi, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, (the Cr.PC), the sole accused in SC No.
57840/2016 on the file of the Additional Sessions Judge-01, North
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District, Rohini Courts, Delhi, assails the judgment dated
19.12.2016 and the order on sentence dated 22.12.2016 by which
he has been convicted and sentenced for the offences punishable
under Section 354 of the Indian Penal Code, 1860 (the IPC) and
Section 12 of the Protection of Children from Sexual Offences
Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 23.02.2014 at 10:15
AM, on the main road, near BDO Office, Alipur, the accused
assaulted PW1, a minor girl, aged about 13 years, by showing his
private part to her with an intention to outrage her modesty.
Accordingly, as per the charge-sheet/final report dated 18.03.2014,
the accused was alleged to have committed offences punishable
under Sections 354 and 354AIPC and Section12 of the PoCSO
Act.
3. On the basis of Exhibit PW1/A FIS/FIR dated
23.02.2014 of PW1, crime no. 164/2014, Alipur Police Station,
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i.e., Exhibit PW6/A FIR was registered by PW6, Assistant Sub
Inspector. PW14, Sub Inspector (SI) was entrusted with the
investigation of the case. PW14 conducted investigation into the
crime and on completion of the same, filed the charge-sheet/final
report dated 18.03.2014 alleging commission of the offences
punishable under the aforementioned sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him, as
contemplated under Section 207 Cr.PC. After hearing both sides,
the trial court, vide order dated 28.07.2014, framed a Charge under
Sections 354 IPC and Section 12 of the PoCSO Act, which was
read over and explained to the accused to which he pleaded not
guilty.
5. On behalf of the prosecution, PWs. 1 to 14 were
examined and Exhibits PW1/A-B, PW6/A-B, PW7/A-B, PW8/A-
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B, PW8/D1, P1, PW10/A, PW11/A-B, PW12/A-D, PW13/A were
marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.PC regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He stated that PW2, father of PW1, was
engaged as a van driver for school children and that he had
borrowed ₹5,000/- from the former. He further stated that he had
repaid the loan after some delay, at which time, he had a quarrel
with PW2, who managed to get his services terminated from the
school, and later on falsely implicated him in the present case.
7. After questioning the accused under Section 313(1)(b)
Cr.PC, compliance of Section 232 Cr.PC was mandatory. In the
case on hand, no hearing as contemplated under Section 232 Cr.PC
is seen done by the trial court. However, non-compliance of the
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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.PC has caused any prejudice to him.
8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 19.12.2016 held the accused
guilty of the offences punishable under Section 354 IPC and
Section 12 PoCSO Act. Vide order on sentence dated 22.12.2016,
sentenced him to undergo rigorous imprisonment for a period of 1
year along with fine of ₹2,500/-, in default of payment of fine, to
simple imprisonment for 30 days for the offence punishable under
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Section 354 IPC, and to rigorous imprisonment for a period of 1
year along with fine of ₹2,500/-, in default of payment of fine, to
simple imprisonment for 30 days for the offence punishable under
Section 12 of the POCSO Act. The sentences have been directed
to run concurrently. Aggrieved, the accused has preferred this
appeal.
10. It was submitted by the learned counsel for the
appellant/accused that the prosecution case suffers from serious
infirmities and assailed the impugned judgement by stating that the
prosecution witnesses, particularly PW3, PW4 and PW8 have
failed to corroborate the testimony of PW1 on the material aspects
of the alleged incident. It was further argued by the learned
counsel that in the absence of such corroboration, the testimony of
PW1 becomes doubtful and unsafe to be relied upon. Emphasis
was on the settled principle of law that the testimony of the victim
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must be of sterling quality to be relied upon by the trial court,
while convicting the accused.
11. Per contra , the learned Additional Public Prosecutor
submitted that the impugned judgment does not suffer from any
illegality or infirmity, as the conviction of the appellant is based on
the cogent, consistent and trustworthy testimony of PW1, who has
stood by her version throughout the trial.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgement calling for an interference by this court.
14. I shall make a brief reference to the oral and
documentary evidence relied on by the prosecution in support of
the case. Exhibit PW1/A, the FIS/FIR dated 23.02.2014, of PW1
reads thus:- On 23.02.2014, at 10:15 AM, a medical camp was
organized at PW1’s school, which required her presence. Since the
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school buses were not operating on that day, she was standing near
the Chaupal at Jindpur Chowk to take a rickshaw, when suddenly a
white coloured van approached from the front and stopped near
her. The driver of the van (the accused Ajay), who was already
known to PW1, offered to drop her at school, for which she agreed
and entered the van. Upon reaching Alipur, she requested the
accused to drop her off, but the accused did not stop the van. The
accused thereafter unzipped his pants, exposed his private parts,
and began moving it (“ शूशू बाहर िनकालकर िहलाने लगा ”). Witnessing
this, PW1 got frightened and jumped out of the moving van. After
falling, PW1 noted down the vehicle registration number, which is
DL-8CP-9085, before the accused sped away in the van. She
further stated that she narrated the entire incident to her father
(PW2), who then reported the incident to the police.
14.1. In Exhibit PW1/B Section164 statement seen recorded
by the Magistrate on 24.02.2014, PW1 made a few minor
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improvements in her version. PW1 stated that while she was on her
way to school at about 9:30 AM, a man (the accused) came in a
van and stopped the van in front of her. She further stated that the
accused was known to her who had earlier driven school bus, and
she later came to know that his name was Ajay. When the accused
stopped the van near her, she asked him as to where he was going
to which the accused replied that he was going towards Alipur,
after which the accused offered PW1 to drop her at Alipur.
Thereafter, when PW1 again asked the accused as to where he was
going, he replied that since it was a Sunday, he was roaming
around aimlessly, after which the accused started taking the
vehicle through the godown route, upon which PW1 questioned
the accused as to why he was taking that route instead of the usual
route to which the accused replied that the usual route was
crowded and therefore he was taking this alternative route. PW1
further stated that at this point, the accused opened the zip of his
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pants and exposed his private parts and started moving it. On
seeing this, PW1 jumped out of the moving van, as a result of
which she sustained injuries on her hands and legs. She further
stated that, she was carrying a paper and a pen, and hence she was
able to note down the registration number of the vehicle.
Thereafter, PW3 an acquaintance of PW1, who was running an
electronics and vehicle repair shop, who reached there, picked her
up from the road. According to PW1, PW3 also shouted at the
accused, but the latter fled away from the spot in the van. PW1
further stated that she narrated the entire incident to PW3 who
called PW2, the father of PW1. She also stated that PW4, the wife
of PW3, washed her face and gave her tea. Thereafter, PW3 called
PW8, the principal of her school who took her to the school. PW1
further stated that she had an ASL examination in her school and
when she reached there, her paternal uncle and other family
members arrived there and took her back home. Thereafter, the
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police was called after her father also returned home to whom she
narrated the entire incident. PW1 also stated that the accused had
called her father and stated that he would apologise and requested
that the matter not be reported to the police and that when the
accused was coming to her house to apologise, he was
apprehended by the police on the way.
15. PW1, when examined before the trial court, stood by
her case in the FIS/FIR and Section 164 statement.
15.1. PW1, in her cross examination, deposed that when she
was in Class VI, the accused used to drive the school bus and that
she used to go by the said bus. PW1 also admitted that her father
was also engaged as a bus driver in the same school, however, he
had left the services of the school long back. PW1 also deposed
that she was not aware about the name of the accused and that she
came to know the name of the accused only after PW8, her school
principal informed her. PW1 further deposed that after the incident
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she went to the house of PW3 and that she informed PW3 about
the incident. Thereafter she had gone to her school. PW3 was the
first person to be told about the incident. However, she clarified
that she had not fully explained the entire incident to PW3.
16. PW2, the father of PW1, deposed that at the time of
incident, his daughter was studying in Gyanodaya Model Public
th
School in class 8 . On 23.02.2014, his daughter went to school as
usual. At about 09:00 - 09:30 AM, he received a call from PW3,
who informed him that his daughter was sexually assaulted.
Thereafter, he immediately returned to his house from duty. PW1
told him about the incident, after which he reported the incident to
the police. Subsequently, police came to his residence and
recorded the statement of his daughter. PW2 further deposed that
the police took her daughter for medical examination and that he
had refused internal medical examination. PW2 stood by his case
in the cross examination.
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17. PW3 deposed that on 22.02.2014, at about 9:30 - 10:00
AM, he opened his shop situated at Plot No. 100, Nehru Enclave,
Alipur. According to PW3, within 10 minutes of opening his shop,
a girl (PW1) aged about 12 to 13 years came weeping into his shop
and requested him to call her father. On her request, he called
PW2, the father of PW1. PW3 further deposed that PW2, father
asked him to drop PW1 at her School. PW4, his wife came and
enquired about the incident. His wife offered PW1 a glass of
water. Thereafter he dropped PW1 at her school. At this juncture,
the prosecutor sought permission of the court to put some leading
questions on the ground that the witness had not supported the
prosecution case. The request sought was allowed. On further
examination by the prosecutor, PW3 deposed that as far as he can
recall, the incident occurred on 22.02.2014 and not on 23.02.2014.
PW3 admitted that he knew the father of PW1. PW3 denied the
suggestion that he had seen PW1 falling down from the Maruti Car
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or that he tried to stop the driver of the car or that the driver
without heeding his request had sped away. PW3 in his cross-
examination deposed that he did not see any car on the date of the
incident.
18. PW4, the wife of PW3, deposed that she could not
recollect the date of incident. According to her, on the date of
incident, PW3, her husband, brought a girl aged about 11-12 years
(PW1) with him to drop her at her school. As the girl was weeping,
she helped the former wash her face and also offered a glass of
water to her. Thereafter, the girl went inside her school. The
prosecutor sought permission of the trial court to put some leading
question as the witness had not supported the prosecution version.
The permission sought was allowed. On further examination by the
prosecutor, PW4 deposed that she could not recollect the date of
the incident. PW4 further deposed that she remembers it to be a
Sunday and that she was not aware about the parentage of the said
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girl. PW4, in her cross examination, deposed that she did not
notice any injuries on the person of PW3
19. PW8, the Principal, Gyanodya Model Public School,
Alipur, Delhi, deposed that PW1 was admitted in the school on
09.04.2007 and as per records, her date of birth is 22.11.2000.
PW8 further deposed that on 23.02.2014, the school was open on
account of a community medical check-up camp and the parents of
the students were invited along with their children. On the date of
incident, PW3, one of her neighbours informed her that one of her
students was in distress. Thereafter she met PW1, who told her that
when she was coming to the school in a van, the driver of the van
was talking to somebody on the phone in an agitated manner, due
to which she got frightened and she jumped out from the van. The
prosecutor sought the permission of the trial court to “ cross-
examine ” the witness on the ground that she was resiling from her
previous statement. The request sought was allowed. During
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further examination by the prosecutor, PW8 denied having stated
to the Police that the accused had misbehaved with PW1. PW8
denied the suggestion that PW1 had informed her regarding the
misbehaviour of the accused. PW8 denied the suggestion that she
had been won over by the accused.
20. The appellant/accused stands convicted for the offences
punishable under Section 354 IPC and Section 12 of the PoCSO
Act. To bring home an offence under the aforementioned Sections,
it is necessary to examine whether the materials on record satisfies
the ingredients of these Sections. Section 354 IPC requires use of
criminal force or assault against a woman and such act being done
with the intent to outrage, or knowing it to be likely that it would
outrage, her modesty. Assault has been defined under Section 351
IPC to mean any gesture or any preparation intending or knowing
it to be likely that such gesture or preparation will cause any
person to apprehend that he who makes that gesture or preparation
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is about to use criminal force to that person. Section 12 of the
PoCSO Act, read with Section 11, thereof contemplates “sexual
harassment” which includes showing of any object or part of the
body with sexual intent or making a child witness a sexually
coloured act. In the case on hand, the consistent version of PW1 is
that the accused while driving the vehicle, unzipped his pants,
exposed his private parts, and performed a lewd act in her
presence, to which act I have already referred to. Seeing this act of
the accused, she became frightened and jumped out of the moving
car. Such conduct of the accused, by its very nature, is sexually
coloured, and the intention of the accused to outrage the modesty
of PW1, a minor girl. The act also created a reasonable
apprehension in the mind of the girl as contemplated under Section
351 IPC. The act squarely falls within the ambit of both the
aforementioned Sections.
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21. The prosecution case primarily rests on the sole
testimony of PW1, on the basis of which the trial court proceeded
to convict the accused. It is a settled position of law that conviction
can be based on the sole testimony of the victim if it is of sterling
quality, and the same does not require any corroboration [See Rai
Sandeep @ Deepu v. State (NCTof Delhi), AIR 2012 SC 157 ].
In the present case PW1 has consistently supported the prosecution
version in her FIS/FIR, her statement in Section 164 Cr.PC and her
testimony before the trial court. The core substratum of her
testimony, i.e., the identity of the accused, the act attributed to him
and the manner in which the incident occurred, has remained
unshaken. The inconsistencies, pointed out by the defence such as
the route taken, conversation between the parties, or post-incident
events are minor in nature, and they do not go to the root of the
prosecution case. Such minor discrepancies are natural,
particularly when the witness is a child, a minor, and the same
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does not affect the credibility. Rather, they lend assurance to the
testimony, as they indicate the absence of tutoring. The testimony
of PW1, when read in its entirety, inspires the confidence of this
Court and that it is of sterling quality because the core allegation,
that the accused exposed himself and indulged in a sexually
coloured act remains intact throughout.
22. Further, as held in Rai Sandeep ( supra ), it is well
settled law that even if a witness turns hostile, it cannot be
disregarded in toto and the conviction can be sustained solely on
the basis of the testimony of the victim/the prosecutrix alone. In
the present case, even though PW3 and PW4 did not fully support
the prosecution case, they do corroborate the fact that PW1 was
found in a distressed condition immediately after the incident.
PW8 also confirms that PW1 was in distress on that day. The
hostility of these witnesses does not go to the root of the
prosecution case.
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23. It is also seen that the defence has sought to rely upon
the statement of PW8 made in Exhibit PW8/D1 Section 161 Cr.PC
statement. The statements made under Section 161 Cr.P.C. are
statements made to the police during the course of investigation
and the same cannot be used except for the purpose stated in the
proviso to Section 162(1) Cr.P.C. Under the proviso to Section
162(1) Cr.PC such statements can be used only for the purpose of
contradicting a prosecution witness in the manner indicated in
Section 145 of the Indian Evidence Act, 1872 and for no other
purpose. They cannot be used for the purpose of seeking
corroboration or assurance for the testimony of a witness in court.
[See Tahasildar Singh v. State of U.P., AIR 1959 SC 1012 ; Sat
Paul v. Delhi Admn., (1976) 1 SCC 727 and Delhi
Administration v. Lakshman Kumar, 1985 KHC 741: (1985) 4
SCC 476 ].
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24. I find no infirmity in the impugned judgement calling
for interference by this Court.
25. In the result, the appeal sans merit, is dismissed.
26. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 17, 2026
kd/ p’ma/rs
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