Full Text
HIGH COURT OF DELHI
Date of reserving: 13th July, 2026
Date of Decision: 24th July, 2026 IN THE MATTER OF:
DILDAR .....Appellant
Through: Mr. Rajat Mishra, Mr. Himanshu Yadav, Advs. with Appellant in person.
Through: Mr. Satinder Singh Bawa, APP for the State.
Ms. Astha Adv. DHCLSC with Ms. Megha Singh, Adv. for prosecutrix.
JUDGMENT
1. Trepidated by the presence of a stranger, that too in the wee hours of the night, was sufficient to raise alarm. However it turned out that the stranger was stranger to the lady of the house, but not to her daughter i.e. the prosecutrix in the instant case. In the intervening night of 1st & 2nd September 2012, the lady of the house PW-1, confronted the stranger as to how come he entered into the house. The stranger fled from the scene but strangely her daughter also followed him. Matter was reported to the police through DD No. 6A dated 02.09.2012 (Mark Z-1) which set the police machinery in action. The duo i.e. Appellant and the prosecutrix who had escaped from the scene and stayed at different places i.e. Rain Basera, a Jungle and possibly house of the brother of the Appellant also, were ultimately apprehended by the police.
2. The statement made by the prosecutrix Ex.PW-2/A laid the foundation of the case and FIR Ex.PW-3/A was registered by the police of PS Nand Nagri under Section 376/452 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
3. The requisites of the investigations i.e. production of the prosecutrix before Child Welfare Committee, her medical examination, her statement under Section 164 Cr.P.C. and the other incidentals were carried out by the police.
4. On conclusion of the investigations, a chargesheet was filed under Section 376/452 IPC. To the charge framed on 24.01.2013 under Section 457/376 IPC, the Appellant pleaded not guilty. The case of the prosecution, traversing through the examination of 12 witnesses, concluded in the shape of conviction of the Appellant, who was held guilty under Section 376/457 IPC and was sentenced to undergo punishment of Simple Imprisonment (“SI”) for 7 years for the offence punishable under Section 376 IPC and for the offence punishable under Section 457 IPC, Appellant Dildar was sentenced to undergo Simple Imprisonment (“SI”) for 4 years. Both the sentences were to run concurrently.
5. The Appellant spent about 1 year, 9 months and 6 days during the investigation, trial and proceedings of the Appeal, whose sentence was suspended in terms of the order dated 23.05.2014.
6. While assailing the judgment of conviction, it is contended on behalf of the Appellant that the Appellant and prosecutrix were having sort of amorous relationship and it was the prosecutrix who had actually called the Appellant to her place on the fateful night. They had consensual sexual relationship but the mother of the prosecutrix woke up and noticed the presence which had resulted into registration of FIR. Incidentally, there it is further submitted that the FIR, in-fact, was lodged under the pressure of the parents of the prosecutrix whereas she had no complaints against the Appellant. It is further contended that the Prosecutrix was, as on the date of incident, was above 16 years of age therefore within her right to establish consensual sexual relationship which does not amount to rape as per preamended definition of „Rape‟ as provided under Section 375 IPC. In order to emphasize and establish the aspect of age, learned counsel for the Appellant has placed reliance on the medical and educational documents of the Prosecutrix, according to which her date of birth was 27.08.1996. The incident took place on 02.09.2012 and on that day, the age of the prosecutrix turns out to be 16 years & 6 days.
7. Learned counsel for the Appellant has drawn the attention of the Court to the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) Ex.PW-2/B and elaborated that the FIR (Ex.PW-3/A) is not the correct narration of the events, rather an influenced statement given by the prosecutrix under the pressure of her family members. So is the position, asserted by learned counsel for the Appellant with regard to her deposition before the Court. The tone and tenor of the statement of the prosecutrix examined as PW-2 clearly reflects that she was torn between two conflicting forces and sentiments. On one side, she, her family and social pressures were working overtime and on the other hand, her soft corner, due to her infatuation for the Appellant has led to a situation where the narrative emerging is such that the Appellant cannot be held responsible, either for committing „criminal trespass‟ with a particular object or for committing „rape‟ upon the prosecutrix. It is emphasized that the act of the prosecutrix in running away with the Appellant clearly reflects that she not only wanted to marry the Appellant, but also did not want to go to her home rather to be with the Appellant as reflected in her statement under Section 164 Cr.P.C. although it has been deposed by her that she surrendered herself to the Appellant under the promise of marriage.
8. In view of these facts, as asserted by learned counsel for the Appellant, the Appellant cannot be held responsible and the findings recorded by learned Trial Court in the impugned judgment are not in consonance with the factual, actual and legal position. The Trial Court, according to the counsel for the Appellant, has failed to appreciate the pre, at and the post incident conduct of the prosecutrix at the relevant times. If the evidence is comprehensively, collectively and exhaustively appreciated in its contextual, social and factual parameters juxtaposing it with human behaviour and conduct, in given set of facts, norms and society with all its peculiarities, then it can be seen that Appellant is not to be blamed for anything. Whatever had happened between the Appellant and the prosecutrix was all on account of the mutual consent, willingness and was completely voluntary.
9. Learned APP, on the other hand, came up with the plea that the prosecutrix had barely crossed the threshold of the age i.e. 16 years on the date of incident and therefore her „consent‟ is immaterial and in any case, the past conduct and happenings between he proseuctrix and Appellant cannot be ignored. It has been highlighted by learned APP for the State that Appellant and prosecutrix were known to each other for the last about 3 years and during those three years also, the Appellant had sexual intercourse with the prosecutrix. In such circumstances, the „consent‟ becomes immaterial since the prosecutrix was less than 16 years of age at that time. With these contentions, learned APP stood by the impugned judgment.
10. Having gone through the record and the contentions raised by the rival sides, what emerges on record is that „age‟ is a very important factor and should be ascertained definitively and, as far as possible, conclusively.
11. As regards the determination of age, the guiding principle is under Section 94 of the Juvenile Justice Act, 2015, which is almost akin to Rule 12 of Juvenile Justice Rules, 2007 which provides as under:- “Section 94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat (iii)and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”
12. In a recent judgment Hon‟ble Supreme Court has fallen back on Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 qua age determination in K.P. Kirankumar @ Kiran vs. State by Peenaya Police Crl. Appeal No.5614/2025 arising out of SLP (Crl.) No. 11287/2025 dated 19.12.2025, where the observations made in Jarnail Singh v. State of Haryana, 2013 SCC OnLine SC 507, were relied upon, which go as under: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.” The above statutory provision not only clearly points out as to how age of a juvenile is required to be determined but the aspect of age of the victim can also be ascertained on these very parameters, as observed in the aforesaid judgments.
13. In the instant case, the record brought qua prosecutrix from the first school attended by her Ex.PW-4/A and Ex.PW-4/B reflects her date of birth as 27.08.1996. There appears no reason not to consider it as the correct date of birth, although in terms of requirement of Section 94 of Juvenile Justice Act 2015 and Rule 12 of Juvenile Justice Rules, 2007, her matriculation certificate should have been there as a more authentic document. Incidentally, the said document is part of chargesheet/Court record, albeit not proved or referred by any of the parties in the evidence. Nonetheless, it is on record filed by prosecution as reflected in list of documents also at serial no.9. Therefore, the Appellant can rely on it. This lends corroboration to the correct date of birth inasmuch as that certificate also records the date of birth of the prosecutrix as 27.08.1996. It, therefore, can be conclusively said that the date of birth of the prosecutrix is 27.08.1996 and on the date of incident i.e. 02.09.2012 she was 16 years(+). The pre-amended Section 375 IPC had age of consent as ‟16 years‟.
14. Against the backdrop of these facts and circumstances, there are two aspects of the matter, one is to consider only the incident which was reported and investigated upon, leaving aside the narrative of the Appellant and the prosecutrix being in a relationship for the past three years prior to 02.09.2012 and during those three years they had established consensual sexual relations also. In the latter event, the consent becomes immaterial and that makes the Appellant answerable. No answer is forthcoming, nor could have been there, in view of the clear cut finding that the prosecutrix was minor even as per the pre-amended definition of the offence of rape under Section 375 IPC more particularly „clause sixthly‟. Whereas, in case of former, the position may not be as critical as in the latter one. Section 375 IPC is reproduced herein below for ready reference:
15. There are three statements before the Court, although it is the substantive statement made before the court, which should be looked into. However, in totality of the circumstances, the other two statements cannot be ignored either.
16. The pursuit of truth, substantial and comprehensive justice is the aim of the judicial process. In these circumstances, the courts cannot become technical or hyper technical or mute spectator rather required to ascertain the factual and actual position. In this context, even a statement which does not fall into the definition of evidence or substantive statement, but recorded under oath by a Judicial Authority, in terms of Section 164 Cr.P.C. cannot be ignored.
17. It is correct that the statement made before the court during the trial is to be taken as the substantive statement/evidence which is relevant for consideration. However, statement made „On Oath‟ before a Magistrate cannot be completely overlooked, effaced or ignored either. It is the substantial justice, not mere adjudication, which should be the aim and object of the judicial process. In this context, the observations made by Hon‟ble Supreme Court in P.Yuvaprakash v. State Represented by the Inspector of Police., (2024) 17 SCC 684 can be looked for guidance:
18. In the instant case, the statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 03.09.2012, i.e. almost immediately after the registration of FIR and was supposed to be the true and correct version of what the prosecutrix wanted to say. This statement, however, absolves the Appellant, as the prosecutrix herself came forward to share the blame equally instead of blaming the Appellant alone, contrary to what has been stated by her in her statement to the police Ex.PW-2/A a day before on 02.09.2012. Apparently, the statement made before the Magistrate Ex.PW- 2/B stands on a better footing and can certainly be looked into in order to ascertain and assess the factual, real and truth of the matter.
19. The unhindered access of the Appellant to the place of the prosecturix, his secret and undisturbed presence at an unearthly hour of 2 AM in the night, the conduct of the prosecutrix in running away with him/after him, when the mother of the prosecutrix noticed the presence of this stranger, coupled with conduct of the prosecutrix thereafter, go on to show that the narrative in the statement given before the Magistrate Ex.PW.2/B, is the true, correct and factual position. This, on the face of it, takes away the sting out of the allegations under Section 457 IPC, atleast. Section 457 IPC- Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.— Whoever commits lurking house-trespass by night, or housebreaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
20. By the very definition of “criminal trespass”, the access to the confines of a house etc., should be stealthily made, not with the permission and consent of the occupants of the premises, that too, with a view to commit some offence or illegal act. However, all these are amiss in the instant case though the Appellant was found in the house of the prosecutrix. He was called by the prosecutrix and he was present in the house with the consent and permission of the prosecutrix, therefore element of criminality goes away. In such circumstances holding the Appellant guilty of criminal trespass is apparently, not in consonance with either the facts and the law.
21. So far as offence of „rape‟ is concerned, the prosecutrix has weaved a story where she does not, in a way, blame the Appellant for any forceful act, rather agrees that what all took place between two of them was consensual. But then, the consent is not free, according to the prosecutrix as at one place, in her deposition before the court she stated that her consent was obtained by the Appellant on the pretext of marrying her, and more or less, same is the position in the statement by the prosecutrix to the police Ex.PW.2/A where the prosecutrix has blamed the Appellant to have forcefully established sexual relationship with her. In such circumstances, how come she ran away with him after the presence of Appellant was detected by her mother. It appears beyond comprehension and no explanation is forthcoming as to why she ran away with him if the Appellant had used forced or had cheated her by assuring or promising marriage, to establish physical relationship with her.
22. At this stage, the statement of prosecutrix recorded under Section 164 Cr.P.C. Ex.PW-2/B can be looked into, to find out the answer to this, which lies in the fact that the prosecutrix was a willing party to everything and apprehending that her family would do something to her, she felt it appropriate to run away with the Appellant himself. Incidentally, the version of the prosecutrix before the Child Welfare Committee (CWC), which was the first point of contact with some Authority except the police, recorded in Ex.PW-10/D, which endorse this fact that the Appellant was called by prosecutrix at her house in the intervening night of 01/02.09.2012 and had established physical relations with him. This, by implication, amounts to a consensual sexual relationship between the Appellant and the prosecutrix. There is another reason why this should be treated as the correct narrative inasmuch as the CWC had directed the SHO to furnish a report with regard to the beatings given by the policemen to the prosecutrix. This fact has been stated by the prosecutrix as has been reflected in her statement recorded under Section 164 Cr.P.C. (Ex.PW-2/B).
23. The Courts have consistently held that testimony of the victim/prosecutrix alone is sufficient to hold the assailant guilty provided that the statement is impeccable, irrefutable and of sterling quality as was observed in State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384.
24. However, the testimony of the prosecutrix in the instant case, when read in conjunction with her two other statements, recorded by the police (Ex.PW-2/A) the one recorded by the Magistrate under Section 164 Cr.P.C. (Ex.PW-2/B) and are juxtaposed with one another and with the statement made by her before the Court, then it can be seen that she is not consistent in her statements. In her substantive statement made before the Court also she lacks consistency and in the concluding line of her cross-examination and the two Court questions prior to that serve a severe blow on the credibility of the prosecutrix. Certainly her testimony, as such, cannot be termed as of sterling quality, therefore, the aforesaid proposition laid down in Gurmit Singh’s case (supra), is not attracted.
25. In such circumstances, apart from the evidence of the prosecutrix, Court has to look out for corroboration to assure about the case of the prosecution / prosecutrix. Reference can be made to the observation in the judgment titled on Nirmal Premkumar and Anr. vs. State represented by Inspector of Police, (2024) 20 SCC 293.
26. Corroboration cannot be there in such like offences from any other independent source or witness, who can be termed as an eye witness. Thus, the circumstantial evidence together with technical, scientific and forensic evidence are to be looked into as confirmatory test of the substantive statement of the prosecutrix.
27. In the instant case not only the substantive statement itself is shaky and does not inspire confidence but the scientific evidence is also not of any assistance, to the cause of the prosecution. The FSL result Ex.PW-10/E reflects that semen could not be detected on any of the exhibits starting from “la” to “lj” i.e. pubic hair of the accused and his underwear. In such circumstances, the blood and semen sample of the Appellant was not subjected to DNA finger print analysis, as reflected in the forensic report (Ex.PW-10/E).
28. As a result, there is nothing against the Appellant so far as the FSL result is concerned. Incidentally the MLC of the victim Ex.PW7/B which practically contains nothing except two things that no injury was noticed by the Doctor, who examined the prosecutrix on 02.09.2012, and that she was further referred for gynecological examination.
29. The record could not reflect anything pertaining to the gynecological department/examination of the prosecutrix. However, document Ex.PW5/A, that is the Seizure Memo of the Exhibits of the prosecutrix prepared by SI Usha can be looked into. It is recorded by her that Lady Constable Anupama got the prosecutrix medically examined through MLC No. 3921/2012 and the “Sexual Assault Evidence Collection Kit” was seized under the seal of GTB hospital together with the sample seal. No record of GTB hospital could be located or pointed out by any of the contesting sides, which renders the sexual assault kit and the resultant examination in the FSL questionable and thus cannot be relied upon or read against the Appellant. In any case there is nothing against the Appellant either in the forensic result.
30. This brings the statement of the prosecutrix in the center stage. Her first statement Ex.PW2/A which laid the foundation of the case and was made basis to register the FIR has certain incriminating overtones against the Appellant but in her statement made before the Magistrate under oath in terms of Section 164 Cr.P.C. (Ex.PW-2/B), she has, in a way, absolved the Appellant. She has not even blamed the Appellant that he had indulged into sexual intercourse with the prosecutrix under the pretext or promise of marriage. She rather goes on to say that she wanted to marry the Appellant. She has stated that it was she who had called him at her place and they had physical relations and when her mother spotted the Appellant she too ran out of the house along / after the Appellant. This statement under Section 164 Cr.P.C. can be looked into in view of the observations made in P.Yuvaprakash’s case (supra).
31. Reverting back to the substantive statement of the prosecutrix made before the Court, it can be seen that the prosecutrix was unsure in her mind as to which direction she wanted to go or what exactly she wanted to tell. Seemingly, she was torn between two conflicting thoughts, one siding with the Appellant and the other one with her own family. It renders a statement unworthy of reliance and in any case in the concluding line of the crossexamination she has let off the Appellant completely. And for that matter demolishes, in the process, the contention raised by the learned APP about the sexual intercourse prior to 02.09.2012.
32. The relevant portion of the cross-examination, including the Court questions are reproduced below:-
33. The version of the prosecutrix recorded at the Child Welfare Committee (Ex.PW-10/D) in a way reflects that the prosecutrix had consensual relationship with the Appellant and that she was not taken for ride in any manner by the Appellant rather she was a willing and consenting party out of her own volition to what all happened between her and the Appellant.
34. On 02.09.2012, she was major as per the school records where her date of birth has been recorded as 27.08.1996. Incidentally, her 10th class certificate was also collected and filed by the prosecution though it could not be taken into consideration either by the Appellant or the prosecution but then the same being part of the record, therefore, the Appellant, certainly can rely upon this document notwithstanding the fact that it has not been proved as such. Thus, the aspect of age of the prosecutrix stands established that she was not a minor as on 02.09.2012.
35. What emerges on record, in totality, is that the Appellant cannot be held responsible for committing house trespass as his entry was facilitated by the prosecutrix as he was there on being called by her and even if he was not called, still the entry into the house of the prosecutrix cannot be treated as criminal trespass by any standard.
36. Again the allegations under Section 376 IPC are not corroborated by medical or forensic evidence. The testimony of the prosecutrix is very shaky and not worth reliance. The Appellant cannot, therefore, be held responsible for the offence of rape/the sexual intercourse between two of them, as the prosecutrix being a consenting party, and competent to consent too. So far as, the earlier incidents are concerned, there is again no evidence except what has been stated by the prosecutrix but given the fact that she is not a reliable witness and being non-committal, sort of neutral or unsure or not forthcoming, therefore, even that does not come to the rescue of the prosecution‟s case. In any case, no charge has been framed with regard to those previous incidents and therefore, the Appellant was not tried or punished for the same, therefore, cannot be held responsible in appeal.
37. As a result, the judgment of conviction recorded by the learned Trial Court cannot be sustained and is accordingly set aside.
38. As an outcome, the Appellant is acquitted of the charges. Bail Bond(s) stand discharged. Application(s), if any, pending stand disposed of.
39. Copy of the judgment be transmitted to Trial Court and Prison Authorities, for information and requisite compliance.