CRA-D-430-DB-2018 (O&M)                                                                 1 

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

CRA-D-430-DB-2018 (O&M)

Reserved on: November 10, 2025

Pronounced on: 11.12.2025

Mumtaz and another

.....Appellants

Versus

State of Punjab ......Respondent

CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

HON'BLE MRS. JUSTICE RAMESH KUMARI

Present: Ms. Dilpreet Kaur, Amicus Curiae with

Mr. Ranjeet Kumar, Advocate for the appellants

Mr. Siddharth Attri, Assistant Advocate General, Punjab.

----

RAMESH KUMARI J.

The instant appeal has been filed by the appellants –Mumtaz and Ringa Hasda @

Bulbul @ Raju (hereinafter referred to as ‘accused’) against the impugned

judgment of their conviction and order of sentence dated 06.02.2018, passed by

learned Judge, Special Court, SAS Nagar, Mohali for the offences under Sections

376-D, 366A, 328, 120-B IPC and Section 6 of Protection of Children from

Sexual Offices Act (hereinafter referred to as ‘POCSO Act’) in a case arising out

of FIR No.169, dated 29.05.2016, registered at Police Station Zirakpur vide

CRA-D-430-DB-2018 (O&M)                                                                 2 

which Mohd. Alludin @ Mulla Thekedar has been acquitted and appellants-

Mumtaz and Ringa Hasda @ Bulbul @ Raju have been convicted and have been

sentenced as follows:-

Offence

under

Section

Period of

sentence

Fine imposed Period of sentence

in default of

payment of fine

363 IPC RI for three

years

Rs.5,000/-each SI for one month

376-D IPC RI for twenty

years

Rs.20,000/- each SI for two months

Both the sentences were ordered to run concurrently.

FACTS OF PROSECUTION’S CASE

2. The above said FIR-Ex.PW16/B was registered on the basis of statement

Ex.PW-1/A of complainant-PW1 ‘KD’(full particulars withheld to conceal the

identity of prosecutrix and her parents and siblings) wherein, she stated that she

was resident of village ‘XX’, Police Station Zirakpur, District Mohali and

working as labourer. She had five children. Her eldest daughter ‘R’ was married

and the second issue was her son ‘S’, The third child, who was daughter, had

since died and younger to her was prosecutrix (PW2). The complainant PW1,

her husband and prosecutrix worked as labourers with Contractor ‘A’, in village

‘X’. PW1‘KD’ had suspicion that on 08.05.2016, her daughter (PW2

prosecutrix) had been enticed away on the pretext of marriage by accused-

Mumtaz, son of Mohd. Gafoor and accused-Ringa Hasda @ Bulbul @ Raju,

who were their co-workers. PW2-prosecutrix was aged 14 years and 6 months,

and her mother PW1-complainant had no document relating to the age of her

CRA-D-430-DB-2018 (O&M)                                                                 3 

daughter-PW2. She had been searching for her daughter till the date of recording

of her statement (PW1/A) i.e. 29.05.2016, at her own level but she could not be

traced out. She was fully sure that accused-Mumtaz and Bulbul @ Raju had

enticed away her daughter.

3. INVESTIGATION

(a) The statement Ex. PW1/A of PW1 was recorded by HC Gurmit Singh on

29.05.2016, when he alongwith police party was present at "T' point Dhakoli, for

patrolling. He made endorsement Ex. PW16/A on statement PW1/A on the basis

of which formal FIR Ex. PW16/B was registered.

(b) Thereafter, on 19.08.2016, PW15-ASI Jagir Singh alongwith Police party

and PW1-KD (mother of the prosecutrix) and one Pappu had gone to Chabewal

Road, Ludhiana and went to the house of one Sarwan Singh, situated behind

Brown Bread Factory. From room No.2 situated there, accused Mohd. Mumtaz

and Ringa Hasda @ Bulbul @ Raju, were apprehended and from their custody

PW2-prosecutrix was recovered vide Memo Ex. PW1/B, which was signed by

prosecutrix, HC Sukhdev Singh, LHC Harmeet Kaur and thumb marked by

PW1-KD. PW1-KD also identified both the accused vide memo Ex. PW1/C,

which was thumb marked by her and by both the accused. Both the accused were

arrested vide Memo Ex.PW6/A and Ex.PW6/B. They were also personally

searched and memo Ex. PW6/C and Ex.PW6/D were prepared. Site plan

Ex.PW15/A of the place of recovery of PW2 was also prepared.

c) PW15-ASI Jagir Singh also got recorded the statement Ex.PW2/A of

prosecutrix under Section 164 Cr.P.C. from the Illaqa Magistrate concerned.

CRA-D-430-DB-2018 (O&M)                                                                 4 

d) On 20.08.2016, PW15 ASI Jagir Singh moved applications Ex.PW14/A and

Ex.PW14/D for medical examination of both the accused regarding their sexual

fitness. Both the applications were marked by Dr. Mahender Singh, the then

SMO vide endorsement Ex.PW4/B and Ex.PW4/E to PW14-Dr. Harinder Singh,

who medically examined both the accused and gave report Ex.PW14/C and

Ex.PW14/F that there was nothing to suggest that patients were not able to

perform sexual intercourse.

e) On 20.08.2016, PW15-ASI Jagir Singh also moved an application

Ex.PW11/C for medical examination of PW2-prosecutrix. The said application

was marked to PW11-Dr. Harpreet Kaur, Medical Officer, Civil Hospital, Dera

Bassi vide endorsement Ex.PW11/D by the then SMO Dr. Mahender Singh. She

medically examined PW2-prosecutrix and issued MLR Ex.PW11/B and OPD

Slips Ex.PW11/E. She also opined vide Ex.PW11/A that analysis of urine for

pregnancy test, was positive.

f) On 30.08.2016, PW2-prosecutrix through counsel moved an application

before learned Judicial Magistrate Ist Class, Derabassi seeking permission for

termination of her pregnancy. Notice of the application was issued to Additional

Public Prosecutor and Medical Board was ordered to be set up to give opinion.

After the opinion of the Medical Board, on the basis of letter dated 06.09.2016

of JMIC, Medical Board was constituted vide order Ex.PW11-G by the then

SMO-Incharge, which consisted of PW11-Dr. Harpreet Kaur, Dr. Liza Gupta and

PW5-Kanwalpreet as members. 11 Weeks’ pregnancy of PW2-prosecutrix was

terminated and report Ex.PW5/B was forwarded to the learned JMIC vide

CRA-D-430-DB-2018 (O&M)                                                                 5 

covering Letter Ex.PW11/H.

(g) On 20.08.2016, ASI Jagir Singh moved an application Ex.PW9/A & to

assess the biological age of PW2- prosecutrix. Vide endorsement Ex.PW9/B, by

the then SMO the application was marked to PW9-Dr. Vijay Bhagat, who

conducted X-ray examination of PW2 and prepared X-Ray films Ex.PW9/D and

Ex. PW9/E and gave opinion Ex.PW9/C that radiological age of PW2 is 17-19

years.

(h) On 29.08.2016 PW-1-complainant produced before PW15-ASI Jagir Singh,

school leaving certificate Ex.PW13/B, bearing No.1596 of PW2 in which her

date of birth is stated to be 07.07.2002, which was taken into possession vide

memo Ex.PW1/D.

i) On 05.09.2016, PW15-ASI Jagir Singh moved applications Ex. PW4/A and

PW4/B before learned Illaqua Magistrate for obtaining the blood sample of the

accused for DNA examination. The applications were marked by the then SMO

to PW14-Dr. Anju, Medical Officer, CHC, Dhakoli. She obtained blood samples

of both the accused and made endorsement Ex.PW4/C and Ex.PW4/D on both

the applications and handed over the samples to the police officials.

(j) The case property was deposited with the then MHC PW7-HC Roop Lal,

who sent the same through Lady Constable PW3-Harmeet Kaur and PW8-HC

Manoj Saini to the office of CFSL Chandigarh and CFSL CBI-Delhi.

(k) On the basis of application Ex. PW11/J, which was marked to PW11-Dr.

Harpreet Kaur vide endorsement Ex. PW11/K, she opined, after seeing the report

of the chemical examiner Ex.PW11/I, that since spermatozoa was detected in the

CRA-D-430-DB-2018 (O&M)                                                                 6 

contents of (a), (b) , II (b), the possibility of sexual act could not be ruled out.

4. PRESENTATION OF CHALLAN AND FRAMING OF CHARGE

(a) After completion of investigation, challan against the three accused as

mentioned in para No.1 of this judgment, was presented on 28.02.2017 before

the learned Judge, Special Court, SAS Nagar, Mohali.

(b) Compliance of provisions of Section 207 Cr.P.C. was made by supplying

copies of report under Section 173 Cr.P.C. and all accompanying documents to

the accused free of cost.

(c) Finding a prima facie case under Sections 363 read with 120-B, 328, 376-D

IPC and Section 6 of the POCSO Act, to be made out against the accused, they

were charged accordingly vide order dated 27.03.2017. The charges were read

over and explained to all the three accused and they pleaded not guilty to the

charges and claimed trial.

5. PROSECUTION EVIDENCE

In order to prove its case against the accused, prosecution had

examined as many as 16 witnesses besides proving the documentary evidence.

The evidence led by the prosecution can be discussed under following heads:-

(a) Complainant and Prosecutrix version:-

a (i) PW1-Complainant - as observed earlier, the FIR Ex.PW16/B was lodged

on the basis of statement Ex. PW1/A got recorded by PW1-KD, who is mother of

the prosecutrix-PW2.

She in her statement before the Court proved her statement Ex. PW1/A, which

was made by her to the police, thumb marked by her and her husband. She also

CRA-D-430-DB-2018 (O&M)                                                                 7 

stated on oath in the Court that on 08.05.2016, her daughter was taken away by

accused Mumtaz and Bulbul @ Raju, who were her co-workers and that at that

time, her daughter was 14 years of age and that her statement was recorded by

the police after 10-11 days of occurrence. She also deposed that it was probably

three months of taking away her daughter, that her daughter was recovered by the

police from Phagwara but not in her presence. She was partly declared hostile

and learned APP was allowed to put questions to her in affirmative form, during

the course of which she identified her thumb marked on memo of recovery Ex.

PW1/B of prosecutrix and identification memo Ex. PW1/C of accused and also

production of certificate Ex.P1 which was taken into possession vide memo Ex.

PW1/D.

a(ii) PW2-Prosecutrix supported the prosecution case in her testimony before

the Court. She deposed that accused Mulla, Mumtaz and Bulbul @ Raju, who

were in tempo offered to drop her at Peer Mushalla in a vehicle, when she had

gone to Kishanpura for the purpose of stitching of clothes. But they took her to

Ludhiana. Mulla then made her eat one laddo, after which she started feeling

giddiness. After sometime, Mulla alighted from the tempo. Mumtaz and Bulbul

@ Raju took her in another vehicle to Ludhiana. While leaving, Mulla stated to

Mumtaz that he should break the sim otherwise, they shall be apprehended. She

also stated that on reaching Ludhiana, they had confined her in one room, where

Mumtaz and Bulbul @ Raju turn by turn had raped her and thereafter, it became

repeated affair as both of them continued to rape her. She also deposed that one

day accused forgot to bolt the door from outside and she went outside the room

CRA-D-430-DB-2018 (O&M)                                                                 8 

to answer the call of nature and met one small girl, who told her that the place

was Ludhiana. One day at about 5:00 P.M, there was knock at the door and it was

her brother-in-law (sister’s husband) along with the police people who had come,

and then she apprised them of the aforesaid sexual assault by Bulbul @ Raju and

Mumtaz and about all the acts committed in conspiracy with Mulla. She also

stated about her recovery memo Ex. PW1/B, which bears her signature and also

deposed about recording of her statement Ex. PW2/A under Section 164 Cr.P.C.

PW2 also stated that she was found to be pregnant and after seeking permission,

her pregnancy was aborted. She specifically identified the accused at the time of

recording of her statement in the Court.

5(B) INVESTIGATIVE EVIDENCE

b (i) PW16-HC Gurmit Singh was the initial Investigating Officer. He in his

statement before the Court proved the recording of the statement Ex.PW1/A of

PW1-KD on 29.05.2016, on which he made endorsement Ex.PW16/A on the

basis of which FIR Ex.PW16/B was registered. As per his statement, he also

prepared site plan of the place of occurrence.

b(ii) PW15-ASI Jagir Singh conducted subsequent investigation of the case as

investigation was handed over to him on 20.07.2016. He proved the investigation

conducted by him as mentioned in para No.3 of this judgment. He got recovered

PW2-prosecutrix from room No.2 of the house of the Sarwan Singh situated

backside Brown Bread Factory on Chhabewal road, Ludhiana. When he raided

the said house on 19.08.2016 alongwith PW1-KD, one Pappu and officials of the

police party. He also proved the recovery memo Ex. PW1/B prepared by him

CRA-D-430-DB-2018 (O&M)                                                                 9 

regarding recovery of PW2 and identification of accused by PW1-KD vide

memo Ex. PW1/C. PW15 in his statement proved the following documents:-

- Ex.PW6/A and Ex. PW6/D-Memos of arrest and personal search of

accused Mohd Mumtaz;

- Ex.PW6/B and Ex.PW6/C-Memos of arrest and personal search of

accused Ringa Hasda @ Bulbul @ Raju;

- Ex.PW15/A-site plan of place of recovery of prosecutrix and place of

arrest of accused Mohd Mumtaz and Ringa Hasda @ Bulbul @

Raju;

- Ex. PW9/A-application for medical examination of PW2-prosecutrix;

- Ex. PW10/A and Ex. PW10/B-Memos of arrest and personal search

of accused Mohd Alloudin;

- Ex. PW4/A and Ex. PW4/B- applications for obtaining the blood

sample of accused Mumtaz and Ringa Hasda @ Bulbul @ Raju;

- Ex. PW11/G-order of SMO constituting a Board of Doctors for

termination of pregnancy of PW2;

- Ex.PW11/H-covering letter vide report after medical termination of

pregnancy of PW2 was sent (to learned JMIC);

- Ex. P1/D-Memo for taking in possession birth certificate Ex.P1 (also

exhibited as school leaving certificate Ex. PW13/B),

He also got conducted medical examination of prosecutrix to assess her age.

5(C) MEDICAL EVIDENCE

C (i) PW11-Dr. Harpreet Kaur-Medical Officer tendered her affidavit

Ex.PW11/A in support of her examination-in-chief. She had medico legally

examined the PW2-prosecutrix on 20.08.2016, on the basis of application

Ex.PW11/C moved by PW15-ASI Jagir Singh, which was marked to her vide

endorsement Ex.PW11/D. She also proved MLR Ex.PW11/B pertaining to

CRA-D-430-DB-2018 (O&M)                                                                 10 

prosecutrix and Vide report Ex.PW11/E, she opined that analysis of urine for

pregnancy test, was positive. She was also Chairperson of the Board of Doctors

constituted on the basis of application Ex. PW11/F, vide order Ex. PW11/G, for

medical termination of pregnancy of PW2-prosecutrix. She conducted the

medical termination of pregnancy of PW2 and submitted report of the Board

Ex.PW5/B vide forwarding letter Ex.PW11/H.

As per her testimony, on application Ex.PW11/J, she made

endorsement Ex.PW11/A and opined that spermatozoa was detected in the

contents of (a), (b) II(b) and possibility of sexual assault could not be ruled out.

c(ii) PW14-Dr. Harinder Singh, Medical Officer, Patiala- He medically

examined the accused Mumtaz and Ringa Hasda @ Bulbul @ Raju on

20.08.2016 on the basis of applications Ex.PW14/A and Ex.PW14/D which were

marked to him by Dr. Mohinder Singh vide endorsement Ex.PW14/B and

Ex.PW14/E. He opined vide reports Ex.PW14/C and Ex.PW14/F, that there is

nothing to suggest that the accused are incapable to perform sexual intercourse.

C(iii) PW9-Dr. Vijay Bhagat- He was posted as Radiologist at Civil Hospital

Mohali at the relevant time. He conducted X-ray examination of PW2-

prosecutrix to assess her radiological age on the basis of an application

Ex.PW9/A and as per his report Ex.PW9/C, the age of prosecutrix was found to

be 17-19 years. He also proved two X-ray films as Ex. PW9/D and Ex.PW9/E.

c(iii) PW4-Dr. Anju, Medical Officer, CHC Dhakoli- She took blood samples

of accused Mumtaz and Ringa Hasda @ Bulbul @ Raju on the basis of

application Ex.PW4/A and Ex.PW4/B, which were marked to her vide

CRA-D-430-DB-2018 (O&M)                                                                 11 

endorsement Ex.PW4/C and Ex.PW4/D by the then SMO and after taking the

blood sample of the accused, she handed over the samples to the police officials.

5(D) LINK EVIDENCE

D(i) PW13-Parbhakar Misher, was Head Master of Primary School Beoli,

Tehsil Bisoli, District Badayon, U.P., who brought the record of admission and

withdrawal of the students maintained in the school. Copy of entry of admission

register recording the admission of prosecutrix is proved vide Ex.PW13/A and

her school leaving certificate is proved vide Ex. PW13/B. He also specially

stated that as per entry, the date of birth of prosecutrix is 07.07.2000.

D(ii) PW7-HC Roop Lal-was posted as MHC at the relevant time in the police

Station Zirakpur and he in support of his examination-in-chief tendered

affidavit Ex. PW7/A. The contents of this affidavit state about deposit of case

property with him by investigating Officer ASI Jagir Singh and sending of case

property by him to the office of chemical examiner, Kharar, Mohali and CFSL,

Delhi.

D(iii) PW3-LHC Harmit Kaur and PW8- HC Manoj Saini- also tendered

their affidavits Ex.PW3/A and Ex.PW8/A which are corresponding to the

affidavit of PW7-HC Roop Lal. PW-3 LHC Harmit Kaur deposited the case

property in the office of Chemical Examiner, Mohali whereas PW-8 Manoj Saini

deposited the case property in CFSL (CBI), Delhi.

5(E) CORROBORATIVE EVIDENCE

CRA-D-430-DB-2018 (O&M)                                                                 12 

E(i) PW6-HC Sukhdev Singh was accompanying PW15-ASI Jagir Singh on

19.08.2016 when ASI Jagir Singh arrested the accused Mumtaz and Ringa Hasda

@ Bulbul @ Raju. He is the attesting witness of following memos :-

- Ex.PW6/A and Ex.PW6/B-memos of arrest of accused Mumtaz and

Ringa Hasda @ Bulbul @ Raju;

- Ex.PW6/C and Ex.PW6/D-memos of personal search of both the

accused;

- Ex. PW1/C-memo of test identification of above named accused

- Ex.PW1/D -memo vide which school leaving certificate of PW2 was

taken into police possession from PW1-KD.

E(ii) PW10-HC Jaswinder Singh was also accompanying PW15-ASI Jagir

Singh and he also deposed about arrest of accused Mohd. Alludin on 21.08.2016

and he is the attesting witness of memos Ex.PW10/A and Ex. PW10/B i.e. arrest

and personal search of accused Mohd. Alludin.

Initially this witness was suppressing the truth regarding the manner

and date of arrest of Mohd. Alludin and learned APP was allowed to put

questions in affirmative form to this witness and he admitted his presence at the

time of arrest of accused of Mohd. Alludin and his signature on both memos

which were thumb marked by accused Mohd. Alludin.

E(iii)PW5-Kanwalpreet Kaur, Psychiatric Social Worker, De addiction Centre,

Civil Hospital Phase-6, Mohali-She was one of the member of the Board

constituted by the then SMO Primary Health Centre, Dera Bassi for conducting

medical termination of pregnancy of PW2 and she corroborated the testimony of

PW11 regarding this. She also proved the order Ex.PW5/A passed by the SMO

CRA-D-430-DB-2018 (O&M)                                                                 13 

and report Ex.PW5/B was prepared after termination of pregnancy of the PW2

on 07.09.2016.

5(f) HOSTILE WITNESS

PW12-Sarwan Singh-He in his examination-in-chief stated that he had raised

one construction of 12 hutment rooms at Chabewal Road, Ludhiana where, in the

said hutment, one person by the name of Makhi Paswan resides on rent and the

said Makhi Paswan used to further rent out the rooms and was his care taker of

the said building. He denied his knowledge regarding the accused and he also

stated that it never came to his notice that from the above said hutment, any

hutment was given on rent to both the accused Mumtaz Mohd. and Ringa Hasda

in August 2016. He was declared hostile.

Learned APP was allowed to put questions in affirmative form to

him and he stated that he came to know about registration of this case from the

police, when the police apprised him telephonically about the arrest of Mumtaz

Mohd. and Ringa Hasda. He never received any rent from the accused and he

volunteered to add that Makhi Parsad used to be his care taker, who must be in a

position to tell about the same.

As observed earlier, after tendering report Ex.DX of DNA

examination, learned APP closed the evidence.

STATEMENT OF ACCUSED UNDER SECTION 313 CR.P.C AND T HEIR

PLEA

6. The Statement of accused under Section 313 Cr.P.C. was recorded separately. All

the accused denied their involvement in the commission of offence and claimed

CRA-D-430-DB-2018 (O&M)                                                                 14 

false implication. All the accused took the plea that they had been falsely

implicated at the instance of contractor ‘A’, under whom PW2 and her entire

family was working. Contractor ‘A’ was inimical towards them due to some

payment dispute. They never abducted/kidnapped PW2. Police has concocted

false story at the instance of the said contractor.

7 DEFENCE EVIDENCE

Learned trial Court granted opportunity to the accused to lead defence evidence

and in defence evidence, accused examined 03 witnesses:-

(i) DW1-Abdul Sartar deposed that he is labourer with Contractor ‘A’ and PW2-

prosecutrix was working with the same contractor. He also deposed that Mullaji

accused, who was working as Sub Contractor with the said Contractor, for

construction of the buildings, had done work as Sub Contractor, worth of Rs. 3/4

Lacs for Contractor ‘A’ but after completion of sub contract, money was not paid

to Mulla by ‘A’, despite asking for the same. He had demanded money 5-6 times

from Contractor ‘A’and there was fight between Mulla and Contractor ‘A’, in

July 2016. Mumtaz and Ringa Hasda were workers of Contractor ‘A’, and they

were not paid full wages for their work done. PW2-prosecutrix ran away from

the house in the year 2016 or 2017, but he does not know the month when she

ran away and with whom she ran away. PW2- prosecutrix came back and her

mother and ‘A’ Contractor had gone to take her from police station and her

mother had taken prosecutrix-PW2 to her house. About 3-4 days of her going

away, PW2 prosecutrix had made a phone call to Mulla Ji at about 12/1.00 pm

and Mulla Ji then facilitated the telephone talk between PW2-prosecutrix and

CRA-D-430-DB-2018 (O&M)                                                                 15 

PW1-her mother. PW2-prosecutrix was having love affair with accused Mumtaz

and was on talking terms with other boys. He deposed that all the three accused

have been falsely implicated in the present case, at the instance of Contractor

‘A’, to evade payment of outstanding amount.

DW -2 Afsana (Co-worker), and DW-3 Afroja Khatun (wife of accused Mohd.

Alladuin @ Mulla) also corroborated the testimony o f DW1-

Abdul Sartar.

8. Learned trial Court framed the following issues for determination in this case:-

(A) Whether on 8/5/2016, Mumtaz and Ringa Hasda @ Bulbul @

Raju, in connivance with Mohd. Allaudin @ Mulla Thekedar, had

taken away the prosecutrix, minor, from the lawful guardianship of

her parents, while administering poison or stupefying intoxicating

thing, with an intent to commit rape upon her and whether from the

period 8.5.2016 to 19.8.2016, Mumtaz and Ringa Hasda @ Bulbul @

Raju, had committed gang rape with the prosecutrix and thus, they

committed offence punishable u/s 363, 376-D IPC and also the

offence punishable u/s 6 of Protection of Children from Sexual

Offences Act, 2012?

9. After closure of defence evidence, the learned trial Court upon considering the

arguments of learned APP and defence counsel and peruse the evidence on record,

acquitted Mohd. Alludin @ Mulla and convicted both the accused- Mumtaz and

Ringa Hasda @ Bulbul @ Raju and sentenced them as mentioned in para No.1 of

this judgment.

10. SUBMISSION OF LEARNED COUNSEL FOR THE APPELLANTS

CRA-D-430-DB-2018 (O&M)                                                                 16 

a) There is delay in lodging in FIR which casts doubt on the prosecution’s story. As

per testimony of PW1-complainant, PW2-prosecutrix went missing from home on

08.05.2016 whereas FIR Ex.PW16/B was recorded on 29.05.2016.

b) PW2-herself left her house and after 2/3 days, returned to her house. She was on

friendly terms with accused-Mumtaz. The accused had dispute over payment of

wages with contractor ‘A’ under whom PW2 and her family were working. At the

instance of said contractor, the accused were falsely implicated and in support of

his contention, learned counsel also referred the statements of 03 defence

witnesses examined in this case.

(c) There was no injury mark on the body of PW2 when she was recovered by PW15

ASI Jagir Singh and medically examined by PW11-Dr. Harpreet Kaur. This

proved that the no forceful sexual relations were maintained by accused-Mumtaz

with PW2. The relationship of PW2 with accused-Mumtaz was consensual and

not forced and for this reason DNA report Ex.PX and endorsement Ex. PW11/K of

PW11 Dr. Harpreet Kaur, is insignificant.

(d) PW2-prosecutrix was major at the time of alleged commission of offence. None of

the accused had enticed her away. Her part testimony has already been discarded

by learned trial Court because benefit of doubt was given to accused- Mohd.

Alladuin @ Mulla and he is acquitted in this case.

(e) As per statement of PW9-Dr. Vijay Bhagat, radiological age of PW2 was 17-19

years and benefit of margin of error in such assessment of age ought to be given to

accused and age of PW2 is to be taken as 21 years.

CRA-D-430-DB-2018 (O&M)                                                                 17 

In the admission and withdrawal register Ex. PW13/A pertaining to PW2, her

date of birth is recorded as 07.07.2000 whereas in school leaving certificate Ex.

PW13/B her date of birth is recorded as 07.07.2002. There are two conflicting

documents regarding her age, which are to be ignored and the age of PW2 as

determined on the basis of ossification test is to be relied upon. Learned Judge,

Special Court has wrongly discarded the evidence of radiologist and has given

undue weightage to the school record.

Learned defence counsel vehemently prayed that it is not a case of gang rape and

rather it is case of consensual physical relations between accused-Mumtaz and

PW2-prosecutrix who was major at the relevant time and as such, offence under

Section 376 IPC and section 6 of POCSO Act is not made out. He vehemently

prayed for acquittal of both the accused by setting aside the judgment of

conviction and order of sentence and acceptance of appeal.

11. SUBMISSION OF LEARNED STATE COUNSEL

Learned State counsel relied upon the oral and documentary evidence led by the

prosecution before the trial Court and contended that learned trial court had

appreciated the evidence in correct perspective and passed judgment of conviction

against both the accused and sentenced them. He prayed for dismissal of appeal.

12. DISCUSSION

(i) Learned defence counsel vehemently contended that there is delay in lodging of

FIR and for this reason, prosecution story cannot be believed and that PW2 herself

left her house and when she returned she named the accused in the commission of

offence at the instance of contractor ‘A’, however, PW1 KD mother of PW2

CRA-D-430-DB-2018 (O&M)                                                                 18 

specifically stated that on 08.05.2016, her daughter was missing and she had

raised the suspicion that she had been enticed away by accused-Mohd. Mumtaz

and Ringa Hasda @ Bulbul @ Raju who are her co-labourers. She is also specific

that till recording of her statement Ex.PW1/A, she had been searching for her

daughter at her own level but could not find her. When the efforts for searching

her daughter made by her and her family members were fruitless, she approached

the Police for lodging the FIR against the accused by specifically naming two

accused. Therefore, the delay in lodging the FIR is well explained in the instant

case.

(ii) In order to prove the age of the PW2-prosecutrix that she was a minor at the time

of commission of offence, the prosecution has relied on the admission and

withdrawal register Ex. PW13/A produced on record by PW13, Parbhakar Misher,

Head Master Primary School, Beoli, Tehsil Bisoli, District Badayon, U.P., the first

attended school of PW2-prosecutrix. In Ex.PW13/A, the date of birth of PW.2 is

recorded as 07.07.2000 and she was got admitted in Class 1

st

at Sr. No.1196 on

15.07.2006 and her last date in the school was 01.07.2010. However, in school

leaving certificate Ex. PW13/B her date of birth is recorded as 07.07.2002, first

date of admission in the school as 15.07.2006 and last day in the school as

01.07.2010 date of rustication is 20.05.2011. Hon’ble Apex Court in Jarnail

Singh v. State of Haryana, [(2013) 7 SCC 263] observed that even though Rule

12 of Juvenile Justice Rules is strictly applicable only to determine the age of a

child in conflict with law, the aforesaid statutory provision should be the basis for

determining age, even of a child who is a victim of crime. 

 Further the Hon'ble 

CRA-D-430-DB-2018 (O&M)                                                                 19 

Apex Court in the case of P. Yuvaprakash v. State reported in 2023 SCC 

On Line SC 846 held as under:

"12. In view of Section 34(1) of the POCSO Act, Section 94 of the 

JJ Act, 2015 becomes relevant, and applicable. That provision is 

extracted below: 

"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: 

        Provided  such  age  determination  test  conducted  on the 

order of the Committee or  the Board shall be completed  within 

fifteen  days  from  the  date  of  such  order. 

(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." 

CRA-D-430-DB-2018 (O&M)                                                                 20 

13.  It  is  evident  from  conjoint  reading  of  the  above  provisions 

that  wherever  the  dispute  with  respect  to  the  age  of  a  person 

arises  in  the  context  of  her  or  him  being  a  victim  under  the 

POCSO  Act,  the  courts  have  to  take  recourse  to  the  steps 

indicated  in  Section  94  of  the  JJ  Act.  The  three  documents  in 

order of which the Juvenile Justice Act requires consideration is 

that the concerned court has to determine the age by considering 

the following documents:  

(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". 

14. Section 94(2)(iii) of the JJ Act clearly indicates that the date 

of birth certificate from the school or matriculation or equivalent 

certificate by the concerned examination board has to be firstly 

preferred in the absence of which the birth certificate issued by 

the  Corporation  or  Municipal  Authority  or  Panchayat  and  it  is 

only thereafter in the absence of these such documents the age 

is  to be determined through "an ossification  test" or "any other 

latest medical age determination test" 

It is absolutely clear that as per Rule 12 of the Juvenile Justice Rules, in order to

prove the age of the child or juvenile, the procedure to be followed and the

documents to be relied by the prosecution are the matriculation or equivalent

certificates if available, in the absence the date of birth certificate given by a

Corporation or a Municipal Authority or a Panchayat. In the present case, the

prosecution has brought on record the document Ex.PW13/A, the entry of the

CRA-D-430-DB-2018 (O&M)                                                                 21 

school register where PW2 was got admitted in Class 1

st

, which is very basis of

school leaving certificate Ex. PW13/B recording her date of birth as 07.07.2002.

In admission register Ex. PW13/A, her date of birth is record as 07.07.2000.

Therefore, her date of birth recorded as 07.07.2000 is taken into consideration to

determine her age. The radiological test is required only in the absence of date of

birth certificate, matriculation certificate, certificate from school first attended

and in its absence birth certificate issued by a Corporation or a Municipal

Authority or a Panchayat. Thus, the learned trial Court rightly held that the

register Ex. PW13/A maintained in the school is admissible in evidence, to prove

the date of birth of the person concerned, in view of Section 35 Indian Evidence

Act. Such date of birth entry has been recorded by the school authorities in

discharge of their official duties and thus, carries weight. Furthermore, it is

pertinent to mention that the radiological assessment of age, as made by the

medical specialist, as such, does not counter the claim of the prosecution,

therefore, PW2 is rightly declared as a “child” being below 18 years of age as on

08.05.2016 as defined under Section 2(d) of POCSO Act.

(iii) PW2 was recovered on 19.08.2016 from one of the rooms out of 12 hutment

owned by PW12 Sarwan Singh situated at Chabewal Road, Ludhiana. Both the

accused Mohd. Mumtaz and Ringa Hasda @ Bulbul @ Raju were also present

there and were arrested on the spot. Medical examination of PW2 was conducted

by PW11 Dr. Harpreet Kaur on the basis of application, Ex. PW11/C on

20.08.2016 and vide her report Ex.PW11/A, PW-11 Dr. Harpreet Kaur opined

that analysis for urine for pregnancy test was positive. Thereafter PW2 moved

CRA-D-430-DB-2018 (O&M)                                                                 22 

application Ex. PW11/F and on the basis of order of learned Illaqa Magistrate,

Board of doctors was constituted by the SMO, vide order Ex.PW11/G. and 11

weeks pregnancy of PW2 was terminated by PW11 Dr. Harpreet Kaur in the

presence of Kanwalpreet Kaur, Psychiatric Social Worker and Dr. Lizy Gupta.

The blood samples of both the accused were also obtained on the basis of

applications Ex. PW14/A and Ex.PW14/D and the samples was collected by

PW14- Harinder Singh, Medical Officer and deposited with PW7-HC Roop Lal

who sent the same for DNA analysis. DNA report Ex. PY reveals that three

parcels of the following Exs. were deposited on 07.03.2017 which are as under:-

“Parcel-1:One  sealed  cloth  parcel  sealed  with  the  seals  of 

"AB". It contained Exhibit-1. 

Exhibit-1:  Reddish  brown  liquid  kept  in  two  vaccutainer 

tubes  described  as  "blood  for  DNA  test  of  accused 

Mohammad Mumtaj". 

Parcel-2:  One  sealed  cloth  parcel  sealed  with  the  seals  of 

"AB". It contained Exhibit-2. 

Exhibit-2:Reddish brown liquid kept in two vaccutainer tubes 

described as "blood for DNA test of accused Ringa Husda". 

Parcel-3:  One  sealed  cloth  parcel  sealed  with  the  seals  of 

"AB".  It  contained  four  exhibits  which  were  marked  as 

exhibits-3a,  3b,  3c  &  3d  in  the  Biology  Division  of  this 

laboratory. 

Exhibit-3A:  Reddish  brown  liquid  kept  in  two  vaccutainer 

tubes labeled as "blood sample of prosecutrix". 

Exhibit-3B:  Cotton  wool  swab  on  a  wooden  stick  having 

extensive  fungal  growth  kept  in  a  plastic  tube  labeled  as 

"vaginal swab of prosecurtrix". 

Exhibit-3C:  Reddish  brown  liquid  along  with  tissue  material 

kept in an injection vial labeled as "product of conception for 

DNA test". 

CRA-D-430-DB-2018 (O&M)                                                                 23 

Exhibit-3D:Tissue material kept in an injection vial labelled as 

"product  of  conception  in  formalin  for  histopathology”. The 

same is returned.” 

DNA reports PY also reveal that:

“ DNA isolation from the exhibits-1, 2, 3a, 3b & 3c was carried 

out  via  organic  extraction  method  and  was  subjected to 

multiplex PCR amplification for fifteen STR loci & amelogenin 

using  AmpFISTR  Identifier  Plus  Kit.  Further,  isolated  DNA  of 

exhibit-3c  was  also  subjected  to  multiplex  PCR  amplification 

for  eight  STR  loci  and  Amelogenin  using  AmpFISTR  Minifiler 

kit.  Genotyping  of  the  amplified  products  was  carried out 

using automated Genetic Analyzer.” 

As  per  DNA  Report  PY  the  results  of  Examination  is  as 

  under: 

“8.1  DNA  profile  generated  from  the  source  of  exhibit-3c 

(Product  of  Conception)  was  found  to  be  consistent  as 

biological  child  of  Mohammad  Mumtaj  (Source  of  exhibit-1: 

Blood sample) and Reena (Source of exhibit-3a: Blood sample). 

8.2 The source of exhibit-3b (Vaginal Swab) did not yield male 

fraction DNA for analysis.” 

This report Ex. PY categorically proved that product of conception-3C was found

to be consistent with biological child of accused Mohd. Mumtaz and PW2

prosecutrix. Therefore, the prosecution proved the foundational facts of its case

that accused Mohd. Mumtaz indulged in repeated sexual intercourse with PW2

which resulted into her pregnancy and she was having 11 weeks of pregnancy

when she was recovered vide memo Ex.PW1/B and examined by PW11 and her

pregnancy was terminated. The contention of learned defence counsel is that PW2

is indulged in physical relations with accused Mohd. Mumtaz being friendly with

CRA-D-430-DB-2018 (O&M)                                                                 24 

her and also because no marks on her body indicating forcible sexual intercourse

was noticed is immaterial because of the age of PW2-prosecutrix who was being

less than 18 years of age.

PW2 categorically stated in her testimony before the Court as well as in her

statement Ex. PW2/A recorded under Section 164 Cr.P.C that she was repeatedly

raped by accused Mohd. Mumtaz and Ringa Hasda @ Bulbul @ Raju when she

was kept in confinement at Ludhiana. Above all, as observed earlier accused

Ringa Hasda @ Bulbul @ Raju was also found present on the spot along with

accused Mohd. Mumtaz when room No.2 was raided by the Police team headed

by PW15 ASI Jagir Singh and PW2-prosecutrix was recovered from the said

room. In such a situation the accused cannot wriggle out of the presumption under

Section 29 and 30 of the POCSO Act. Sections 29 and 30 of POCSO Act are reads

as under:-

“29. Presumption as to certain offences.-Where a person is

prosecuted for committing or abetting or attempting to commit any

offence under sections 3, 5, 7 and section 9 of this Act, the Special

Court shall presume, that such person has committed or abetted or

attempted to commit the offence, as the case may be unless the

contrary is proved.”

“30. Presumption of culpable mental state.(I) In any prosecution for

any offence under this Act which requires a culpable mental state on

the part of the accused, the Special Court shall presume the. existence

of such mental state but it shall be a defence for the accused to prove

the fact that he had no such mental state with respect to the act

charged as an offence in that prosecution.

CRA-D-430-DB-2018 (O&M)                                                                 25 

(2) For the purposes of this section, a fact is said to be proved only

when the Special Court believes it to exist beyond reasonable doubt

and not merely when its existence is established by a preponderance

of probability.

Explanation.-In this section, "culpable mental state" includes

intention, motive, knowledge of a fact and the belief in, or reason to

believe, a fact.”

The statement Ex. PW2/A of PW2 recorded under Section 164 Cr.P.C. on

testimony of PW2 in the Court on oath; testimony of her mother; PW1 coupled

with investigation conducted in this case by and PW16 HC Gurmit Singh and

PW15 ASI Jagir Singh; medical evidence in the form of MLR Ex. PW11/B;

potency reports Ex.PW14/C and Ex. PW14/F of both the accused as proved by

PW14 Dr. Harinder Singh; Medical Officer and DNA report Ex.PY of the blood

samples of accused Mohd. Mumtaz taken on the basis of application Ex.PW4/A

by PW4 Dr. Anju which when compared with the product of conception-3C of

PW2 were found to be consistent with biological child of accused Mohd. Mumtaz

and PW2 prosecutrix; presence of spermatozoa from the virginal swabs of PW2;

as per opinion Ex.PW11/K of PW11 Dr. Harpreet Kaur made on the basis of

report of chemical examiner fully prove the existence of foundational facts that

both the accused kidnapped PW2 and took her away from the lawful guardianship

of PW1 on 08.05.2016 with intent to commit rape upon her and from the period

08.05.2016 to 19.08.2016 both the accused Mohd. Mumtaz and Ringa Hasda @

Bulbul @ Raju repeatedly committed gang rape with PW2. The accused failed to

rebut the above noted foundational facts proved on record by the prosecution.

CRA-D-430-DB-2018 (O&M)                                                                 26 

Their defence that they had been falsely implicated at the instance of Contractor

‘A’ because the accused had dispute with Contractor ‘A’ regarding payment of

their wages could not be substantiated effectively. Therefore, the accused failed to

rebut the statutory presumption under Sections 29 and 30 of POCSO Act.

13. Conclusion

In view of above discussion, the only conclusion that can be drawn is that learned

trial Court rightly appreciated the oral and documentary evidence and passed the

judgment and conviction against both the accused. There is no infirmity, illegality

or perversity in the impugned judgment of conviction and order of sentence. The

appeal in hand is dismissed being without merits.

We also note that the learned trial Court has not awarded compensation to PW2.

The successor Court of learned trial Court is directed to quantify the compensation

payable to PW2 and refer the matter to Secretary DLSA, concerned for

disbursement of compensation so quantified.

Copy of this judgment be sent to concerned quarters for compliance.

(GURVINDER SINGH GILL)       (RAMESH KUMARI) 

              JUDGE               JUDGE 

11.12.2025                       

 Jyoti-IV