Full Text
HIGH COURT OF DELHI
Date of Decision: 4th February, 2026
STATE (NCT OF DELHI) .....Appellant
Through: Mr. Ritesh Kumar Bahri, APP with Ms. Divya Yadav, Adv.
SI Babita Kumari, PS Aman Vihar
Through: Respondent in person.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed by the State assailing the judgement dated 6th August, 2016 passed by the ASJ-01, (North West), Rohini, District Courts, New Delhi by which the Respondent has been acquitted by the Trial Court for charges under Sections 376/354(D)/506 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) and Sections 4/12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, ‘POCSO Act’) in Sessions Case NO. 190/14. Factual Background
3. It is the case of the Prosecutrix that she and the accused were working together in a factory. The Accused would attempt to talk to her several times and used to also follow her, when she used to leave the factory. The Prosecutrix did not inform her parents about the said conduct as she was afraid that they would compel her to leave the job. According to the Prosecutrix, the alleged incident occurred on 19th August, 2014 when she had taken leave from the factory, as she was not feeling well. On that said date, the Accused is stated to have visited the residence of the prosecutrix at about 9 - 9:30 AM in the morning. It is the allegation of the Prosecutrix that the Accused bolted the door from inside and raped her. The sister of the Prosecutrix happened to reach the residence for some work, the Accused was still present at the residence and he was hiding under the bed. The sister of the Prosecutrix saw the accused, she had bolted the door from outside and had called someone from the neighbourhood for help. When the door was unbolted, the Accused is stated to have escaped.
4. It is the further case of the Prosecutrix that the incident was informed to the father of the Prosecutrix after a couple days. Thereafter, on 24th August, 2014, the father of the Prosecutrix made a call to the P.S. Aman Vihar, stating that the accused had raped her daughter. The said information was recorded in DD No. 18 A at P.S. Aman Vihar. The father of the Prosecutrix then reached P.S. Aman Vihar along with his daughters i.e, the Prosecutrix and elder daughter. Inquiries were made by the Investigating Officer and the girl was sent for medical examination to SGM Hospital and MLC was prepared. Pursuant thereto, the statement of Prosecutrix was recorded under Section 164 of Cr.P.C and complaint was filed by the father of the Prosecutrix that the Accused had raped his daughter on 19th August, 2014, i.e., 6 days before the filing of the complaint. The FIR NO. 916/2014 was registered at P.S. Aman Vihar.
5. The accused was arrested upon being identified by the Prosecutrix, on 24th August, 2014. Thereafter, charges were framed against the Accused for offences punishable under Section 11/12 of POCSO Act, alternatively under Sections 354-D of IPC and 3(a) and Section 4 of the POCSO Act, alternatively under Sections 376(2) (i) of IPC and 506 of IPC vide order on charge dated 13th February, 2015. Proceedings before the Trial Court
6. In order to prove the charges against the Accused, 15 witnesses were examined by the prosecution, out of which certain key witnesses have confirmed the incident which has taken place. The key witnesses are as follows:
(i) PW-5, The Prosecutrix,
(ii) PW-6, Doctor at the SGM Hospital,
(iii) PW-7, Doctor at the SGM Hospital,
(iv) PW 9, Sister of the Prosecutrix,
(v) PW 13, father of the Prosecutrix,
(vi) PW 14, Independent witness.
7. However, in cross-examination, PW-14 denied that the accused was the same person who came out of the residence when the incident took place. Moreover, he also stated that the estimated age of the Prosecutrix, who was inside the room, would be around 18 years.
8. In order to prove the age of the Prosecutrix, the prosecution had also relied upon the testimony of PW-2, Mr. Rajendra Gautam, lab Assistant, Govt. Girls. Sr. Secondary School, JJ Colony, Nangloi, Delhi. PW-2 stated that the date of birth of the Prosecutrix was 12th December,1999 which was recorded on the basis of an affidavit given by the father of the Prosecutrix.
9. After the prosecution evidence, the defence did not lead any evidence. Arguments were heard and the Trial Court acquitted the Accused vide the judgment dated 6th August, 2016 passed by the ASJ-01, (North West), Rohini, District Courts, New Delhi. Findings of the Trial Court
10. On the basis of all the evidence which was recorded, and the arguments that were advanced, the Trial Court came to the various conclusions. Age of the Prosecutrix
11. The Trial Court came to the conclusion that the Prosecution has not been able to prove that the age of the Prosecutrix is less than 18 years of age and that the Prosecutrix is a child within the meaning of Section 2(d) of the POCSO Act. In this regard, the reasoning given by the Trial Court is as under:
(ii) Delay in reporting the matter to Police
12. The Trial Court held that the Prosecution has not been able to offer any reasonable explanation for a delay of 5 days in reporting the incident to the Police. In this regard, the findings of the Trial Court are as under:
33. PW-9 has stated that although the neighbours had pressed hard to report the matter to the police but her father wanted his wife and two married elder daughters to come from village and the matter would be reported only after consulting them.
34. Whereas PW-13 in his evidence in this regard has stated that on 23.08.2014 one of his relatives namely Sh. Krishan Mohan Pandey had visited his house with whom he had discussed about the incident and thereafter he and his said relative had spoken to the prosecutrix and PW-9 and only thereafter he along with both of his daughters had gone to PS on 24.08.2014 at about 6 p.m.
35. It is worth noticing that the prosecutrix in her statement U/S 164 CrPC Ex. PW 5/B had stated that she got the present case registered against the accused at the instance of her father. The stand of the prosecutrix in her evidence is that she had disclosed to PW-9 about the commission of penetrative sexual assault upon her by the accused only on 23.08.2014 in the evening, who in turn had communicated the same to PW-13, who had thereafter taken both of them to PS on 24.08.2014 and reported the matter.
36. There is a clear contradiction in the explanations for the aforesaid delay offered by prosecutrix, PW 9 and PW – 13. PW-9 has not spoken a word about their relative having visited their house and advising them to report the matter to the police. Whereas PW – 13 has not spoken anything about he having decided that the matter would be reported to the police only after the arrival at home of his wife and two married daughters.
37. Therefore, the prosecution has miserably failed in offering any reasonable explanation for the delay of 5 days in reporting the matter to the police.”
(iii) Conduct of the Prosecutrix
13. While taking into consideration the conduct of the Prosecutrix, the Trial Court considered that the Accused person was known to the Prosecutrix. Moreover, when the Prosecutrix was confronted with photographs showcasing her and the Accused in an intimate position, she added that the photographs were clicked 4 to 5 days prior to the incident. Additionally, the Court also considered that during her counselling with the Child Welfare Committee on 25th August, 2014, she had probably disclosed that she had friendship with the accused. Moreso, the Court also noted that when the 164 Cr.P.C statement of the Prosecutrix was being recorded, her father kept sitting with her, probably to make sure that the Prosecutrix deposed in a certain way. Therefore, the Trial Court concluded that the possibility of the Accused and Prosecutrix having a consensual relationship on the date of the incident cannot be ruled out. In this regard, the Trial Court has observed as under: “40. In cases of sexual assault, evidence with respect to consent cannot be obtained by direct evidence but same can be inferred from the surrounding circumstances enveloping the occurrence. Admittedly the accused was known to the prosecutrix as well as PW-9 as he had been working in the same factory where the prosecutrix had been working. The prosecutrix in her evidence has leveled allegations of stalking against the accused whereas in her cross-examination in the first line itself she had stated that she did not know the accused and had never talked to him. When she was confronted with a photograph Ex. PW5/DX-1 depicting her and accused in an intimate position then she hastened to add that the said photograph was got clicked at Rajdhani Studio about 4-5 days prior to the date of incident where she had gone along with the accused. She was also confronted with a small love letter Ex. PW 5/DX-2 to have been written by her to the accused. She denied the same to be in her handwriting. On the direction of the court she was asked to write two lines, the same is part of record. A bare comparison of the peculiarity of writing of few words which are common in both the aforesaid documents reveals that there is strong possibility that this love letter is in the handwriting of the prosecutrix, however I refrain from concluding that it is in all probabilities in the handwriting of prosecutrix. She denied the suggestion of the defence that she had been in love with the accused and wanted to get married to him. She further denied the suggestion that on the date of incident she herself had called the accused at her house but on account of PW-9 having accidently reached there and finding both of them in the house the accused was falsely implicated in the present matter at the instance of her father. It is relevant to note that on 25.08.2014 the prosecutrix was produced before Child Welfare Committee ( CWC) where she was counseled by the experts in children rights, there she had probably disclosed that she had been having friendship with the accused as in the proceedings of CWC Ex. PW 15/A at the time of her counselling she was advised “ to mend her ways and not to keep friendship with the boys”. This coupled with the fact that PW-13 remained sitting with her at the time of recording of her statement U/S 164 CrPC probably to make sure that she deposed in a particular fashion makes the deposition of prosecutrix unworthy of credence. In the last line of her aforesaid statement the prosecutrix stated that she had filed this case on the directions of her father. The conduct of the prosecutrix, PW-9 and PW-13 is shrouded in suspicion in not reporting the matter to the police on 19.08.2014 itself, if it was so serious. Therefore, the possibility of the coloured version of the prosecutrix regarding commission of penetrative sexual assault upon her by the accused cannot be ruled out.
41. I am conscious of the law that the conviction can be based on the sole testimony of prosecutrix if it inspires the confidence of the court and there is no need for any independent corroboration of her version in that case. I am equally conscious of the law that, “in a case of rape the evidence of the Prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which governs the appreciation of evidence in a criminal matter(ref.:Tameezuddin@TammuVs.State (NCT of Delhi(2009) 15 SCC566).
42. In this case the sole independent witness PW- 14 has not supported the case of prosecution with regard to the identity of accused. As far as the allegations of commission of penetrative sexual assault upon her are concerned only prosecutrix could have deposed about it as no one else except her had seen the accused committing the same. PW-9, PW-13 and PW-14 were not present in the room when the alleged incident took place. Therefore, the possibility of the accused and prosecutrix having only spent sometime together with their consent inside the room on the date of incident cannot be ruled out. The prosecutrix has also not offered any explanation as to how she had the knowledge about the address of accused, if she did not have acquaintance with him. Therefore, it is clearly evident that the conduct of the prosecutrix does not satisfy the criteria laid down by the Hon'ble Supreme court in Rai Sandeep @ Deepu (supra).”
(iv) Medical and Forensic Evidence
14. The Trial Court considered that the medical examination of the prosecutrix revealed no injuries on her, which indicates that no force was used against her. During the internal gynecological examination, only a torn hymen was observed, which could be due to several reasons. The Trial Court also considered the testimony of PW-7 Dr. Shamita Goel, who had also deposed that that hymen could have been torn on account of other activities also. Therefore, the Trial Court concluded that merely on the account of torn hymen, it cannot be presumed that the Prosecutrix was subjected to sexual assault. In this regard, the findings of the Trial Court are as under:
15. Initially, on 1st August, 2017, the matter was listed as Crl.L.P. 291/2017. The Court had allowed the leave to appeal on behalf of the state and had directed the appeal to be numbered. Thereafter, the matter was to be listed in due course.
16. Today, the matter has been heard at length. Mr. Ritesh Kumar Bahri, ld. APP, for the State has made the following submissions:
(i) It is vehemently argued that the Prosecutrix’s statement is sufficient to convict the accused.
(ii) It is also submitted that the school records were sufficient evidence to ascertain the date of birth of the Prosecutrix and the Trial Court was wrong in disregarding the same.
(iii) Moreover, it is also submitted that the Prosecutrix’s father had clearly confirmed the date of birth of the Prosecutrix as being 12th December, 1999. Therefore, the acquittal of the Accused by the Trial Court deserves to be set aside and he deserves to be convicted.
(iv) Further, ld. APP also submits that key witnesses have confirmed the presence of the accused on the date of incident and the MLC also proves that the rape was in fact committed. It is contended that the MLC clearly records that the hymen was torn and there was tenderness in the private parts of the Prosecutrix.
(v) Finally, it is submitted that, in the given circumstances, since the
Prosecutrix was studying in the 6th standard at the relevant time when the incident occurred, the clear conclusion would be that even if the relationship was consensual, the same would be punishable under the provisions of the POCSO Act.
17. The Respondent is present in person. Upon a query from the Court, he submits that he is presently living in Darbhanga, Bihar and that he is married and has three children. Upon further query, he asserts that he is not aware of the whereabouts of the Prosecutrix. Analysis and Findings
18. The Court has considered the matter. The incident itself appears to have been proved from the evidence on record. However, the Trial Court has given detailed findings in respect of the age of the prosecutrix, the conduct of the prosecutrix, as also the delay in reporting the matter.
19. The Trial Court has disbelieved the school records in determining the age of the Prosecutrix, as the affidavit by which the father of the Prosecutrix had gotten her age recorded in the school records, was itself held to be false.
20. Additionally, the father of the Prosecutrix had also produced the horoscope of the Prosecutrix i.e., Janampatri which he claimed to have been prepared after the birth of the Prosecutrix. However, based on the evidence, the Trial Court has found that the Janampatri was prepared after the filing of the chargesheet.
21. Moreover, the Trial Court has also considered that no attempt was made by the prosecution to establish that age of the Prosecutrix as that being a minor. The Trial Court considered that the prosecution could have analysed the age of the other siblings and their identity cards etc., to lend some authenticity to the age of the Prosecutrix. Further the Prosecutrix was earlier studying in the village in 8th standard and was thereafter transferred to 6th standard in this school. Even if the incident was proved, the Trial Court came to the conclusion that the age having not been proved, the accused does not deserve to be convicted.
22. Insofar as the incident is concerned, the Trial Court has rightly considered that the prosecution has not offered any reasonable explanation for a delay of five days by the Procesutrix and father of the Prosecutrix, in reporting the present incident.
23. Further, the Trial Court has also considered the conduct of the Prosecutrix, wherein she was confronted with the photographs where she was found in an intimate position with the Accused. She had admitted that the said photograph was clicked four to five days prior to the date of incident where she had gone with the Accused.
24. After perusing the evidence on record, the Trial Court has acquitted the Accused and observed as under:
45. In view of the above discussion it shall be highly unsafe to convict the accused in the matter on the basis of such a shaky material. The accused is accordingly granted benefit of doubt and he stands acquitted. He is in judicial custody. He be released forthwith, if not required to be detained in any other case or proceedings.”
25. Thus, the Court finds no infirmity with reasoning of the Trial Court in respect of the incident, the conduct of the Prosecutrix, and the possibility of a consensual relationship with the Accused at the time of the incident.
26. Moreover, in a situation where the Prosecution has not been able to establish the age of the Prosectrix beyond reasonable doubt, the benefit of doubt ought to be given to the Accused. In this regard, the Supreme Court in Rajak Mohammad v. State of Himachal Pradesh (2018) 9 SCC 248, had held as follows:
27. Additionally, in the case of State v. Tofil Ahmad, 2024 SCC OnLine Del 5403, a Co-ordinate Bench of this Court has categorically observed that in the absence of any primary material on the basis of which the date of birth of the Prosecutrix has been recorded, the said date of birth mentioned in a School Register cannot be taken as sacrosanct. This view has also been followed by this Court in its judgment dated 24th September, 2024 passed in CRL.L.P. 69/2023 titled State v. Rajiv @ Raju. Relevant portion of the said judgement is extracted herein below:
28. The judgment in Tofil Ahmad (Supra) as also State v. Rajiv @ Raju (Supra) has been recently reiterated by this Court in Crl.A 1327/2015 titled State v. Sonu @ Parminder wherein also the issue of age determination was involved.
29. Therefore, in view of the doubt surrounding the date of birth of the Prosecutrix and the failure to conclusively establish that she was a minor at the relevant time, the Court is not inclined to interfere with the findings of the Trial Court in the present appeal.
30. Accordingly, the judgment of the Trial Court is upheld. The accused is discharged.
31. The appeal is disposed of in these terms. Pending applications, if any are also disposed of.
PRATHIBA M. SINGH JUDGE MADHU JAIN JUDGE FEBRUARY 4, 2026/ys/sm