CRL.A. 192/2025 Page 1 of 22

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 06.01.2026

Judgment pronounced on: 12.01.2026

+ CRL.A. 192/2025 and CRL.M.(BAIL) 330/2025

PANKAJ .....Appellant

Through: Mr. Abhinav Bajaj, Mr. Saksham

Ojha, Ms. Geetashi Chandna and

Ms.Priya Fandon, Advocates.

versus

STATE OF NCT OF DELHI .....Respondent

Through: Mr. Utkarsh, APP for the State.

CORAM:

HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA

JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Sections 415(2) and 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant, the sole

accused, in S.C. No. 932/2017 on the file of the Special Court

under the Protection of Children from Sexual Offences Act, 2012,

Tis Hazari Courts, Delhi, challenges the conviction entered, and

sentence passed against him for the offences punishable under

CRL.A. 192/2025 Page 2 of 22

Sections 354, 376(2)(i) of the Indian Penal Code, 1860 (the IPC)

and Section 10 of the Protection of Children from Sexual Offences

Act, 2013 (the PoCSO Act).

2. The prosecution case is that on 03.11.2017 between 07:30

PM and 08:00 PM near Sati Mandir, Aram Bagh, Paharganj, the

appellant/accused committed rape/aggravated penetrative sexual

assault on PW3 and PW4, who were aged about seven years and

six years respectively. On the next day, i.e., 04.11.2017, a PCR

call was received at Police Station Paharganj vide DD No. 14A,

Ext. PW17/A, regarding the incident, pursuant to which PW17 and

PW19, the Sub Inspectors, reached the aforesaid place where they

met PW3 and PW4 as well as their parents. The accused was also

present, as he was held by members of the public. The accused was

handed over to the police. PW19 recorded the FIS of PW2, that is,

Ex. PW2/A. Based on the same, Crime No. 329/2017 was

registered, that is, Ex. PW5/A FIR by PW5 ASI. On completion of

CRL.A. 192/2025 Page 3 of 22

investigation, charge sheet/final report was submitted before the

court by PW19 alleging the commission of the offences punishable

under Section 376 IPC and Section 5 of the PoCSO Act. After

receiving the FSL result, i.e., Ext. PW19/F, a supplementary

charge sheet was also filed.

3. The accused on being produced before the trial court was

served with copies of the chargesheet and the documents in

compliance with Section 207 Cr.P.C.. As per order dated

09.01.2018, a charge under section 376 IPC and Section 5 of the

PoCSO Act was framed, read over and explained to the accused, to

which he pleaded not guilty.

4. On behalf of the prosecution, PWs.1 to 19 were examined

and Exts. PW1/A-G, PW2/A-C, PW2/1, PW3/A, PW4/A, PW5/A-

B, PW6/A-B, PW11/A-E, PW 12/A-B, PW14/A, PW15/A,

PW16/A-B, PW17/A, PW18/A-C, PW19/A-D, DA, DB, E-G,

PW19/1-3, Mark A to D, Ex PA - P4 were marked in support of

CRL.A. 192/2025 Page 4 of 22

the case. After the close of the prosecution evidence, the accused

was questioned under Section 313 of the Code of Criminal

Procedure, 1973 (Cr.P.C), with regard to the incriminating

circumstances appearing against him in the evidence of the

prosecution. The accused denied all those circumstances and

maintained his innocence. He submitted that he had been falsely

implicated in the case. According to him, there were disputes

between him and PW8, the father of PW3, regarding encroachment

and parking rehri in front of his house/ temple as the latter used to

take rehri on a daily basis from one Danish and Sultan. He had

given a complaint to the police against the said two persons

regarding the parking of rehri/encroachment. Hence, Danish and

Sultan, in connivance with the parents of PW3, have falsely

implicated him in the present case.

5. As the trial court did not find it a fit case to acquit the

accused under Section 232 Cr. P.C., the accused, was asked to

CRL.A. 192/2025 Page 5 of 22

enter on his defence and adduce evidence in support thereof. No

oral or documentary evidence was adduced by the accused.

6. On a consideration of the oral and documentary evidence

and after hearing both sides, the trial court, vide the impugned

judgment dated 05.09.2024, found the accused guilty of the

offences punishable under Sections 354, 376 IPC and Sections 6

and 10 of the PoCSO Act and hence sentenced him to rigorous

imprisonment for 10 years and fine of ₹1,000/- and in default to

undergo simple imprisonment of one month for the offence

punishable under Section 376(2)(i) IPC; to rigorous imprisonment

for 5 years and fine of ₹1,000/- and in default to undergo simple

imprisonment of one month for the offence punishable under

Section 354 IPC and to rigorous imprisonment of 5 years and fine

of ₹1,000/- and in default to undergo simple imprisonment of one

month for the offence punishable under Section 10 of the PoCSO

Act. The fine, when deposited by the accused, has been directed to

CRL.A. 192/2025 Page 6 of 22

be paid to the victim for her rehabilitation. The sentences have

been directed to run concurrently. Set off under Section 428 Cr.

P.C. has been allowed. Aggrieved, the accused has come up in

appeal.

7. The only point that arises for consideration in this appeal

is whether the conviction entered and sentence passed against the

accused/appellant by the trial court are sustainable or not.

8. It was submitted by the learned counsel for the

appellant/accused that the trial court erred in convicting the

accused when there was only the uncorroborated testimony of the

victims, namely, PW3 and PW4. PW3 and PW4 are not sterling

witnesses, and hence their testimony alone ought not to have been

made the basis for conviction. The testimony of PW3 and PW4 are

full of contradictions and inconsistencies. The medical evidence

also does not in any way support the prosecution case. No injuries

have been noted in the medical certificates, namely, PW6/A and

CRL.A. 192/2025 Page 7 of 22

PW6/B. There are no injuries noted in the private parts of the

victims. The hymen has been reported to be intact in the case of

both PW3 and PW4, despite the allegation of penetrative sexual

assault.

8.1. According to the learned counsel for the

appellant/accused, the present case is a false one foisted on the

accused due to the enmity between the accused and the parents of

the victims. Hence, the impugned judgment, which is based on

totally unsatisfactory evidence, deserves to be set aside, goes the

argument. In support of the argument, reference was made to the

dictums in Santosh Prasad v. State of Bihar (2020) 3 SCC 433;

State of Madhya Pradesh v. Ramesh & Anr. (2011) 4 SCC 786;

and Promud Yadav v. State of Assam 2025 SCC OnLine 1937.

9. Per contra, it was submitted by the learned Public

Prosecutor that while appreciating the evidence in the case on

hand, this court must be sensitive of the fact that PW3 and PW4

CRL.A. 192/2025 Page 8 of 22

were aged about 6 and 7 years at the time of the incident. In such

circumstances, there is bound to be some inconsistencies and also

contradictions in their statements. However, the contradictions

and inconsistencies pointed out by the defence are quite immaterial

and irrelevant, which have not affected the core prosecution case.

No contradictions whatsoever have been brought out in the

testimony of either PW3 or PW4. The testimony of the victims has

not been discredited in any way, and hence the trial court was right

in finding the accused guilty of the aforesaid offences. There is no

infirmity in the impugned judgment calling for an interference by

this Court, argued the prosecutor.

10. Heard both sides.

11. Exts. PW6/A and PW6/B are the certificates relating to

the medical examination of PW4 and PW3 respectively conducted

on 04.11.2017. The brief history recorded in Ext. PW6/A reads

thus:

CRL.A. 192/2025 Page 9 of 22

“As per ____ (PW4), d/o ___ (PW10), she was playing near

to Mandir, Rani Bagh. She was called by neighbour Pankaj,

Pankaj called ___ (PW4) and took her to Mandir whereunder

some tent, he undressed ____ (PW4) and inserted his finger in her

private parts. As per ____ (PW4), Pankaj had removed his

underwear too. Now she has been brought for medical

examination”

11.1. There are no injuries noted in PW6/A, and the hymen is

reported to be intact.

11.2. In Ext. PW6/B, the brief history recorded reads:-

“As per ____ (PW3), daughter of ______ (PW8) she was

playing near Mandir, Ranibagh. She was called by neighbour

Pankaj to Mandir, where under the shed of some tent he undressed

her & inserted his finger in her private parts. Pankaj also removed

his underwear. Now she has been brought to LHMC for medical

examination.”

CRL.A. 192/2025 Page 10 of 22

12. As in the case of PW4, no injuries are noted, and the

hymen is reported to be intact. Therefore, referring to these

certificates, it was argued by the learned counsel for the

appellant/accused that the medical evidence does not in any way

support the prosecution case though the allegation is that the

accused committed penetrative sexual assault on PW3 and PW4.

13. The trial court disbelieved the case of penetrative sexual

assault on PW4 and has convicted the accused for the offences

punishable under Section 354 IPC and Section 10 of the PoCSO

Act only as far as the assault on PW4 is concerned. In the case of

PW3, the prosecution case of penetrative sexual assault has been

held to have been proved and hence the accused convicted for the

offence punishable under Section 376(2)(i) IPC.

14. It is true that the medical evidence on record does not

support the prosecution case of penile penetration of PW3. PW4,

in the box, does not have a case of the accused having committed

CRL.A. 192/2025 Page 11 of 22

digital rape on her. The certificates say no internal examination

was conducted as consent for the same was not given. PW14, the

mother of PW4, deposed that both the children were crying during

the medical examination and hence, she did not give consent for

internal examination. Therefore, the medical evidence on record

does not in anyway support the case of the prosecution. Be that as

it may, if the remaining evidence on record is believable and

trustworthy, then the court can certainly look into the same to see

whether the prosecution case stands established. Hence, I will refer

to the testimony of the victims in this case, namely, PW3 and

PW4.

15. The incident in this case is alleged to have taken place on

03.11.2017 between 7 and 8 pm. Section 164 Cr.P.C. statement,

namely, Ext. PW3/A of PW3, is seen recorded on 06.11.2017.

PW3 in her statement has stated thus:- “I was playing near the

temple with my friend PW4. Pankaj uncle (accused) dragged both

CRL.A. 192/2025 Page 12 of 22

of us into the tent. I know his name because he lives nearby. He

spoke dirty things to me. He then removed my undergarment, and

put his genital inside my genital. (The Magistrate has recorded

thus- “At this stage, the victim starts moving back and forth to

show how accused behaved, i.e., the pelvic thrust movement of

back and forth”) He then removed the undergarment of PW4 and

put his finger inside her genital. (The magistrate has recorded thus-

“the witness points out at her vagina”) Then I returned home. PW4

told her friend about the incident. The friend in turn told my sister

about the incident. My sister informed my mother about the

incident.”

16. PW3 was examined before the trial court on 02.02.2019.

The relevant portion of her testimony reads thus:

“Question: What happened to you?

Answer: Kachhi utaari thi. Uncle ne. Pankaj uncle ne. Pehle

bulaya tha ye lo prasad. Main andar chali gayi mandir me. Vaha

CRL.A. 192/2025 Page 13 of 22

ek kamra tha. Vahan le gaye the. Prasad dekar meri aur meri

friend W ki kacchi utaari thi. Phir apni toilet ki jagah meri toilet ki

jagah iagai. Usne apni toilet waii jagah meri aur meri friend ki

toilet waii jagah me ghusane ki koshish kari thi aur phir ghusa

diya tha. Phir hamne chiiiaya par kisi ne suna nahi. Phir usne

chod diya. Meri friend 'M' ka nahi pata par main ghar aa gayi

thi”.

16.1. The aforesaid testimony roughly translated reads:-

“Pankaj uncle called me and gave prasad. I went inside the temple

where I was taken into a room. After giving prasad to me and my

friend (PW4), he removed our undergarment. He put his genital

into my genital. He tried to insert his genital into my genital and

the genital of my friend and then he did it. We screamed/cried out.

But nobody heard us. Then he left us. I don't know about my

friend, but I went home.”

17. Section 164 Cr.P.C statement of PW4, namely, Ext.

CRL.A. 192/2025 Page 14 of 22

PW4/A also seen recorded on 06.11.2017, says thus: “I was

playing with my friend (PW3) in the temple. Uncle Pankaj spoke

dirty things (gandi baate). Uncle called us to the tent near the

temple. He removed my undergarment and put his hand. (The

Magistrate has recorded thus- “At this stage, victim points out at

her vagina and makes a gesture that he put his hand inside her

vagina”). He put his hand inside my genital. He removed the

undergarment of my friend (PW3) also and put his genital inside

her genital and moved back and forth. (The Magistrate has

recorded thus:- “At this stage, she moves back and forth to show

how accused entered victim PW3 and kept moving his penis”) I

told my friend ___ about the incident. That friend told _____

(PW3's elder sister), who in turn told her mother about the

incident.

18. PW4, when examined, deposed thus-

“Question: What wrong had happened with you when you

CRL.A. 192/2025 Page 15 of 22

had gone to the Temple?

Answer: Uncle bula rahe the, naam pata nahi hai. Vo

kachchi nikai kar hath laga rahe the, jahan shushu karte hain

vahan hath laga rahe the. Fir hum bhaag gaye the. Us din mere

sath meri friend ____ (PW3) bhi thi, vo bhi mere sath gayi thi. Us

Uncie ne Pooja ki kahchi nikal kar aur apni kachcha nikal kar

ganda kaam kar rahe the. Us Uncle ne____ (PW3) ko suta kar

uske upper khud bhi leit gaya tha. Fir vo bahar aa gaya. Fir ____

(PW3) bhaag gayi thi. Vo ____ (PW3) ke shushu mein hath laga

raha tha. Fir hum dono bhag kar apne apne ghar par chale gaye.

Fir maine ghar jaakar apni friend ____ ko bataya. ____ ne ____

(PW3) ki didi ko bata diya. Fir ____ (PW3) ki didi ne ____ (PW3)

ki Ammi ko bata diya.”

19. A rough translation of the aforesaid testimony reads thus:

“Uncle was calling. Do not know his name. He removed the

undergarment and put his hand on the genital. Then we ran away.

CRL.A. 192/2025 Page 16 of 22

On that day my friend (PW3) was also with me. Uncle removed

his as well as my friend's undergarment and did bad things. That

uncle lay on top of _____ (PW3). Then _____ (PW3) came out

and ran away. He was putting his hand in the genital of _____

(PW3). Thereafter both of us ran away to our respective homes. I

went home and told my friend about the incident, who in turn told

____ (PW3's sister). ____ (PW3’s sister) informed their mother.”

20. A reading of the cross-examination of PW3 and PW4

show that no contradiction(s) have been brought out or proved.

According to the learned counsel for the appellant/accused, it was

a lawyer appointed by the Legal Services Authority who had

conducted the trial, and that many crucial aspects have not been

brought out in the cross-examination of the witnesses and that the

contradictions have not been proved. Though the appellant/accused

had taken up a contention that the present case is a false one

foisted on him due to the enmity existing between him and the

CRL.A. 192/2025 Page 17 of 22

parents of PW3 and PW4, there are no materials to support the

same. The medical evidence to which I have already adverted to

does not support the prosecution case of penetrative sexual assault.

So the only question to be considered by this court is whether the

testimony of PW3 and PW4 are credit worthy and whether on their

sole testimony the conviction can be sustained. It is no doubt true

that conviction can be made on the basis of the sole testimony of

the victim(s). But in such cases as has been held in several earlier

cases, the evidence/testimony of the witness must be of sterling

quality. Hence, I will proceed to examine whether the testimony of

PW3 and PW4 satisfies the said test.

21. As noticed earlier, the Section 164 statements of PW3

and PW4 have been marked as Exts. PW3/A and PW4/A

respectively. These statements can be used for corroboration as

well as for contradiction. As stated earlier, no contradiction(s)

have been brought out by the defence in the cross-examination of

CRL.A. 192/2025 Page 18 of 22

the witnesses. The statements have been marked by the

prosecution obviously to corroborate the testimony of PW3 and

PW4. So now, the question is, does Exts. PW3/A and PW4/A

Section 164 statements, corroborate the prosecution case? I am

afraid the answer will have to be in negative. It is no doubt true

that the victims were of quite young age/tender age, and therefore,

there are bound to be variations or differences in their testimony.

The question is whether those variations/differences or

inconsistencies are material and have affected the core prosecution

case.

22. The first inconsistency pointed out is the place of

occurrence. In the Section 164 statements, PW3 and PW4 state that

the incident took place inside a tent near the temple. However, in

the box, their case is that the incident took place in a room situated

inside the temple. PW3 in Ext. PW3/A, has a case that both of

them were dragged into the tent near the temple by the accused and

CRL.A. 192/2025 Page 19 of 22

that the accused committed penile penetration on her and digital

rape on PW4. However, her case in the box is different as she

deposed that the accused committed penile penetration on both of

them and that both of them cried out/screamed, but nobody heard

them. She has no case that they were dragged into the tent. On the

other hand, her case is that the accused invited them inside the

temple by offering prasad.

23. PW4, on the other hand, in Ext. PW4/A Section 164

statement, stated that the accused committed digital rape on her

and that PW3 had been subjected to penile penetration. However,

in the box, PW4 deposed that the accused had removed their

undergarment as well as his undergarment; that the accused lay on

the top of PW3 and committed digital rape on PW3. PW4 has no

case of penile penetration by the accused. These are material

inconsistencies in the statements of PW3 and PW4 in describing

the sexual assault by the accused. These inconsistencies, coupled

CRL.A. 192/2025 Page 20 of 22

with the absence of medical evidence, raise doubts regarding the

prosecution case. As referred to earlier, despite the prosecution

case being of penile penetration and digital rape, no injuries were

found on the private parts of PW3 and PW4, who admittedly were

of tender age at that time of the incident. The hymen has also been

reported to be intact. Now even assuming that there was no

complete penetration resulting in complete or partial tear of the

hymen, there would have been some injury/tenderness or mark

indicating the assault, as the medical examination was conducted

on the very next date of the assault. But no seen injury is recorded.

24. Further, it is true that no plausible reason(s) or any reason

for that matter have been shown by the defence to substantiate his

case that the case on hand is a false one foisted due to the alleged

existing prior enmity between the parents of the victims and the

accused. But that would not mean that the prosecution case will

automatically stand established. The burden is always on the

CRL.A. 192/2025 Page 21 of 22

prosecution to establish its case beyond reasonable doubt. Merely

because the accused does not give any explanation or set up a

consistent defence, is no ground to find that the prosecution has

succeeded in establishing the case unless there are materials in

support of the same. The testimony of PW3 and PW4 alone could

not have been made the basis for the conviction, as there are

material inconsistencies in describing the act of the accused. In

such circumstances, it would not be safe to convict the accused on

such unsatisfactory evidence. Suspicion however strong cannot

take the place of proof beyond reasonable doubt. That being the

position, I find that the trial court went wrong in relying on the

sole testimony of the victims to conclude regarding the guilt of the

accused. I find that the accused is entitled to the benefit of doubt in

this case.

25. In the result, the appeal is allowed, and the impugned

judgment is set aside. The conviction and sentence imposed

CRL.A. 192/2025 Page 22 of 22

against the appellant/accused by the trial court is set aside and the

accused is acquitted under Section 235(1) Cr.P.C of the offences

charged against him.

26. The accused shall forthwith be set at liberty if not

required in any other case. A copy of the judgment be sent to the

Jail Superintendent concerned.

CHANDRASEKHARAN SUDHA

(JUDGE)

JANUARY 12, 2026/mj/er