K v. State NCT of Delhi

13. Section 16 of POCSO Act inter alia defines „abetment‟ as: A person abets an offence, who “intentionally aids, by any act or illegal omission, the doing of that offence”. Further, Explanation II to the said provision states that, “Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

14. Additionally, Section 21 read with Section 19 of the POCSO Act, enjoins a person to report as to the commission of the offence to the relevant authorities if they come to know of the same, and provides for punishment for a failure thereof.

15. Lastly, Sections 29 and 30 of the POCSO Act, which are presumptive clauses, provide as under:

person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

Age of the Victim

16. Firstly, insofar as the age of the victim is concerned, this Court notes that the prosecution has led evidence to establish that the victim was a minor at the relevant time. PW-3, Dr. Pramod Kumar Mishra, Principal/In-charge, Composite Ucch Prathmic Vidyalya, Bairi, Ganesh Pur, Shiksha Chhetra Jahangir Ganj, had produced the school admission register and proved the entry relating to the victim‟s date of birth as 30.11.2007. The learned Trial Court has rightly recorded that on the basis of the said testimony, the date of birth of the victim stands proved, and that the offence in question was committed during the period 2017 to 2018, and therefore, the victim was only about 10 to 11 years of age at the relevant time. Significantly, the testimony of PW-3 has remained unchallenged. The accused persons did not crossexamine the said witness on any aspect, nor was any argument raised to dispute either the authenticity of the school records or the fact of the victim being a minor.

17. Accordingly, this Court is of the opinion that the prosecution has duly proved that the victim was a child within the meaning of Section 2(1)(d) of the POCSO Act at the time of the commission of the offences. Thus, the provisions of the POCSO Act stand fully attracted in the present case. Appreciation of Prosecution Evidence

18. In the above backdrop, this Court finds that it has been a consistent case of the prosecution, as broadly evident from the testimonies of the prosecution witnesses, that in August 2017, the victim child, along with the appellant i.e. her mother, her father (PW- 4), and her other siblings, had come to Delhi and had started living in a rented accommodation at Jasola, Sarita Vihar. The father had started his job as a security guard while the appellant herein had joined Apollo Hospital. Further, co-accused Alok had played an instrumental role in securing employment for them in Delhi, and he used to reside in the same building in Delhi as that of the family of the victim.

19. PW-1, the victim child, who was examined by the learned Trial Court, has deposed that accused Alok used to often visit the house of the victim, sometimes even during the presence of her father, and even otherwise. However, insofar as the alleged incidents are concerned, she has deposed that the same used to take place whenever her father used to go for his work. Specifically, she stated that Alok used to remove her clothes, touch her private parts and insert his penis into her vagina. She has also deposed that upon her protesting to such acts, Alok used to threaten her by saying that her father and brother would be killed if she disclosed his acts to anyone. Pertinently, she has highlighted the role of the appellant i.e. her mother, in facilitating the commission of the said offence. She has categorically stated that the appellant used to silence her voice whenever she raised an alarm, beat her and instead asked her to let the co-accused Alok do whatever he was doing, saying that “ye sab nahi hoga to ghar ka kharch kaise chalega”. She has further stated that Alok used to rape her during the day time as well as in the night, regardless of whether her mother was awake or asleep. She also testified that the appellant used to sleep beside the co-accused Alok and Alok used to sleep between her and the appellant herein. She also stated that she had disclosed these incidents to her grandmother, bua and chacha and thereafter, she was brought to Delhi for lodging the FIR. In her cross-examination, she clarified that on the bed, four people used to sleep and the sequence of the same was – the victim, co-accused Alok, appellant „K‟, and the victim‟s brother. She also clarified that her father had taken her to his village in October 2018.

20. Having considered the testimony of PW-1, the testimony of PW-2, the victim‟s grandmother, can now be analysed, as she was the first person to have been informed of the alleged incidents by the victim. She has deposed that her son (PW-4), along with his wife (the appellant) and two children including the victim, had shifted to Delhi in August 2017. PW-2 has stated that she was seriously ill since November 2017 and was diagnosed with cancer in February 2019, whereafter she remained continuously ill and had to be operated upon twice. In the meantime, in October 2018, the victim had been sent to her maternal grandmother‟s home first, after which she was brought to the home of PW-2 i.e. her paternal grandmother. PW-2 has deposed that her medical situation remained critical till November– December 2019, as she was undergoing chemotherapy in the meantime; and thereafter, when she had asked the victim child to return to Delhi at the residence of her parents, the victim had informed her of the alleged incidents committed by the accused persons, including the appellant. Thereafter, she had called the victim‟s father and upon his arrival, informed him about the details disclosed by the victim. As deposed, it was pursuant thereto that the victim‟s grandmother, along with her husband, the victim, and the victim‟s father, reached Delhi on 18.01.2020 and reported the incident to the police.

21. At this stage, it would be material to take note of the testimony of the grandfather of the victim, who was examined as PW-6 before the Trial Court. In his deposition, he has detailed the sequence of events, which corroborates the version of his wife, i.e. the victim‟s grandmother. He has specifically deposed that he had brought the victim child from the house of her maternal grandmother to his native place, and that his wife i.e. PW-2 had been informed by the victim of the acts committed by co-accused Alok as well as the appellant‟s role therein. Furthermore, as deposed, they had informed the victim's father about the facts disclosed by the victim child and thereafter, four of them had come to Delhi to lodge the FIR in question.

22. Now, the fourth material witness, whose testimony is to be examined, is PW-4 i.e. the father of the victim child. He is also the complainant in the case, at whose complaint the FIR was registered. He has supported the prosecution case and has deposed that he was informed by his mother (i.e. PW-2) that the victim child had disclosed to her that she had been sexually abused by co-accused Alok, in the presence of the appellant herein. Thereafter, he had come to Delhi along with his parents and the victim child and got the FIR registered.

23. Thus, the broad facts as clearly emerging from the testimonies of PW-1, PW-2, PW-4 and PW-6 are that: ● Co-accused Alok was closely associated with the family, lived in the same building, and frequently visited the house of the victim, and he was having relations with the victim‟s mother. ● The victim (PW-1) has categorically alleged that Alok repeatedly committed penetrative sexual assault on her whenever her father was away for work. ● The victim has further deposed that her mother, the appellant „K‟, facilitated the offence by silencing her, beating her when she resisted, and telling her to let Alok do as he wished since otherwise, they would not be able to meet household expenses. ● The victim has also stated that her mother and Alok used to sleep beside her on the same bed, with Alok sleeping between her and the appellant. ● The victim left Delhi in October 2018, first staying with her maternal grandmother, and thereafter being brought to the house of her paternal grandparents. ● During this period, her grandmother (PW-2) was seriously ill with cancer and undergoing treatment; later, when the grandmother asked the victim to return to her parents in Delhi, the victim disclosed the incidents of sexual assault and her mother‟s role. ● The victim‟s grandmother (PW-2) subsequently disclosed the incidents to her husband i.e. victim‟s grandfather (PW-6), who corroborated that PW-2 had informed him of the disclosures made by the victim. ● Both grandparents thereafter informed the victim‟s father (PW- 4), following which all three of them brought the victim to Delhi on 18.01.2020 and got the FIR registered.

24. The above-noted prosecution witnesses were cross-examined at length, and several questions were put to them touching upon different aspects of the case. However, despite some minor contradictions, their testimonies have remained firm and consistent on the material aspects of the prosecution‟s case.

25. The victim, both in her statement recorded under Section 164 of Cr.P.C. as well as in her deposition before the learned Trial Court, which is considerably detailed, has remained categorical and consistent that she was subjected to repeated sexual abuse over a period of time by co-accused Alok. She has also been clear that her mother, i.e., the present appellant, was fully aware of such abuse, yet instead of intervening, she chose to scold and beat the victim whenever she protested. This lends sufficient weight to the allegation that the appellant not only failed in her duty to protect her child but also actively facilitated and abetted the acts of co-accused Alok.

26. Thus, in view of the testimonies discussed above, a prima facie case stands established by the prosecution witnesses. Consequently, the statutory presumption under Section 29 of the POCSO Act comes into play against the accused persons, shifting the burden upon them to rebut the same with cogent defence material. Defense of Accused

27. The accused persons, in their statements recorded under Section 313 Cr.P.C., have denied the allegations. Co-accused Alok has taken a stand that he was in a consensual sexual relationship with the appellant, and that the appellant‟s husband (PW-4) was aware of this, owing to which he had falsely implicated the accused persons in the present case. On the other hand, the appellant, in her statement under Section 313 of Cr.P.C., has alleged that PW-6 (victim‟s grandfather) used to insist that she have sexual relations with him, and since she refused, he had falsely implicated her. Significantly, though the cross-examination of PW-6 runs into more than four pages, not a single question or suggestion was put to him on this alleged demand of sexual favours. Instead, the defence suggestions given to PW-6 were that he had falsely implicated the appellant as he had come to know of her affair with Alok and also because of certain disputes and settlement talks between the appellant and her husband (PW-4) having failed. Thus, it is apparent that the accused persons have taken mutually contradictory stands before the Trial Court, and no cogent evidence has been led by them to rebut the presumption under Section 29 of the POCSO Act, nor has any defence witness been examined by them in their defense evidence.

28. The learned counsel for the appellant herein has contended that the victim child had failed to disclose the alleged incidents at the earliest possible opportunity. However, in the opinion of this Court, the delay in this disclosure does not affect the credibility of the prosecution‟s case. At the relevant time, the victim was barely around 11 years of age, living in an environment where the very person expected to protect her i.e. her own mother was instead facilitating the perpetrator in committing the offence in question. In such circumstances, it would be wholly unrealistic to expect a child of such tender years to muster the courage to promptly disclose the repeated sexual abuse she was subjected to. Her eventual disclosure to her grandmother and thereafter to other family members, when she found a safe environment away from the accused persons, appears to be both natural and credible. Thus, the delayed disclosure cannot be treated as an infirmity in the prosecution‟s case.

29. In addition, it has been argued on behalf of the appellant that the delay of more than a year in registration of FIR is a circumstance prejudicing the prosecution‟s case. This Court however finds that the delay has been satisfactorily explained in the evidence of prosecution witnesses. It stands established that PW-2, the grandmother of the victim, to whom the victim first disclosed the incidents, was herself seriously ill, suffering from cancer, and undergoing surgeries and chemotherapy during the relevant period. PW-6, the grandfather of the victim, was primarily occupied in taking care of her. The complainant PW-4 (victim‟s father) was wholly unaware of the abuse until he was informed by PW-2. PW-2 was informed about the incidents by the victim child as soon as her medical condition had improved, and especially when the victim was asked to return to her parents‟ house in Delhi. Thereafter, the present FIR came to be registered.

30. The Hon‟ble Supreme Court has consistently emphasized that delay in disclosure and delay in registration of FIR, particularly in cases of sexual assault upon children, must be considered in the light of the sensitivities involved. In State of Himachal Pradesh v. Sanjay Kumar: (2017) 2 SCC 51, the Hon‟ble Supreme Court has observed as under: “30…..At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevents such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism…”

31. Thus, in the facts and circumstances of the present case, and considering the family dynamics, fear and trauma which the victim must have endured, and her vulnerable age, this Court finds that the delay in registration of the FIR is fully explained and does not in any way corrode the credibility of the prosecution version.

32. Another contention raised on behalf of the appellant is that the victim had materially improved her statement regarding the bed on which she used to sleep with the appellant and co-accused Alok. It has been argued that she had initially described it as a single bed and had later clarified it to be a double bed. This Court finds that such a discrepancy is minor and insignificant in nature. The testimony of a child witness cannot be expected to be accurate in such minute details, especially when she was recounting traumatic events from an impressionable age. At that age, it is highly probable that she would not have known or understood the distinction between a single and a double bed. What is material is that she has consistently deposed that she used to sleep on the same bed with co-accused Alok and her mother, when Alok used to commit sexual assault upon her. When weighed against the consistent, cogent, and categorical testimony of the victim, coupled with the corroborative statements of the grandparents and father, such minor discrepancies pale into insignificance. The learned Trial Court has, therefore, rightly rejected this contention of the appellant, and this Court sees no reason to take a different view.

33. Furthermore, it has been contended on behalf of the appellant that there is no medical evidence in this case to support the allegations of sexual assault. However, it is material to note that the absence of any medical evidence, such as injuries on the private parts of the victim, is wholly explained by the fact that the victim had disclosed the incidents much later, i.e. more than a year after their occurrence, for the reasons already noted above, to her grandmother, and the FIR was eventually registered in January 2020. By that stage, it was neither possible nor reasonable to expect any medical evidence of injuries etc. to be present. This Court is also of the view that when cogent and consistent ocular testimony of the victim child is available, lack of medical evidence can be no ground to discredit her version [Ref: Deepak Kumar Sahu v. State of Chhattisgarh: 2025 LiveLaw (SC) 776].

34. Equally relevant is the settled legal principle that conviction on the sole testimony of the victim is sustainable provided her evidence is of a sterling quality, free from material inconsistencies or inherent improbabilities [Ref: State NCT of Delhi v. Pankaj Chaudhary: (2019) 11 SCC 575]. It is also trite law that minor inconsistencies, especially in the testimony of a child victim of sexual assault, do not affect the substratum of the prosecution‟s case. [Ref: State of Punjab v. Gurmit Singh: (1996) 2 SCC 384; Pappu v. State of Uttar Pradesh: 2022 SCC OnLine SC 176]. Conclusion: Case Proven Beyond Reasonable Doubt

35. In the light of the discussion made above, this Court finds that the prosecution has been able to prove its case against the appellant beyond reasonable doubt. The evidence, both oral and documentary, establishes that the victim was a child of tender years at the relevant time, and that she was subjected to repeated sexual assault by the main accused Alok. The appellant, who was expected to provide protection and care to the victim, not only failed in that duty but also played an active role in facilitating the commission of the offence. Her conduct in silencing the victim, directing her to submit, and permitting the co-accused Alok to sleep with the victim in the same bed and let him sexually abuse her, clearly demonstrates intentional assistance and aiding on her part. These acts go much beyond passive acquiescence and fall squarely within the ambit of “abetment” under Section 16 of the POCSO Act, punishable under Section 17.

36. Further, the material on record also establishes that the appellant deliberately chose not to report the matter to the authorities or even to any other person in a position to prevent further harm on the victim child. This act of hers attracts punishment under Section 21 of POCSO Act.

37. It is pertinent to note that once the prosecution has laid the foundation by proving the age of the victim, the commission of the sexual acts, and the active role of the appellant, the statutory presumptions under Sections 29 and 30 of the POCSO Act necessarily come into play, as already discussed above. The burden thus shifts onto the appellant to rebut these presumptions by bringing forth credible evidence or explanations; however, apart from bare denial, no material has been placed on record to displace or weaken the prosecution case, and the defence of the appellant has remained unsubstantiated.

38. In this backdrop, this Court is of the considered view that the essential ingredients of the offences alleged stand established. The testimonies of the victim and other prosecution witnesses inspire confidence, remain consistent, and are corroborated by surrounding circumstances. Thus, this Court finds that the charges under Sections 6 read with Section 17 as well as Section 21 of the POCSO Act are proved beyond doubt against the appellant.

39. As regards the quantum of sentence, this Court notes that while the minimum prescribed punishment for the offence under Section 6 of the POCSO Act is twenty years and the maximum is imprisonment for life, the learned Trial Court has awarded a sentence of twenty-five years‟ rigorous imprisonment to the appellant as well as to the coaccused Alok Yadav. While doing so, the learned Trial Court observed that the gravity of the acts committed had caused deep alarm in society and irreparable trauma to the victim; and that, in the interest of justice, a balance has to be maintained between the reformative and deterrent theories of punishment. It emphasized that the extent of punishment must depend on the atrocity of the crime, the conduct of the offenders, and the helpless state of the victim, and that appropriate punishment should reflect not only the rights of the accused but also the rights of the victim and society at large, thereby conveying the community‟s abhorrence of such crimes.

40. This Court is in agreement with the said observations. Considering the nature of the allegations and the fact that the minor victim child was subjected to repeated sexual assault within the supposed safety of her own home, with the active participation of her mother, no leniency is warranted in the matter while considering the quantum of sentence. The punishment awarded by the learned Trial Court is therefore just, appropriate, and commensurate with the gravity of the offences proved against the appellant.

41. In view of the foregoing observations, the impugned judgment of conviction as well as order on sentence is upheld.

42. The appeal is accordingly dismissed.

43. The judgment be uploaded on the website forthwith. DR.

SWARANA KANTA SHARMA, J. SEPTEMBER 18, 2025 T.D.