CRL. A.109/2025 Page 1 of 22

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 04

th

November, 2025

Pronounced on: 06

th

January, 2026

+ CRL. A.109/2025

RAM KUBER

S/o Sh. (Late) Ram Surat

R/o Village & PO Fatehpur,

Distt. Ambedkar Nagar, PS Baskhari,

Uttar Pradesh .....Petitioner

Through: Mr. Adit S. Pujari, Advocate

(DHCLSC), Mr. Bhavesh Seth,

Advocate, Mr. Siddharth Kaushal,

Advocate.

versus

STATE (NCT OF DELHI)

Through Chief Secretary

Delhi Secretariat, J.P. Estate,

New Delhi-110002 .....Respondent

Through: Ms. Manjeet Arya, APP for the State.

Ms. Vrinda Bhandari, Advocate

(DHCLSC) and Ms. Vanshita Gupta,

Advocates.

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. A Criminal Appeal under Section 415 read with Section 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as

CRL. A.109/2025 Page 2 of 22

‘BNSS’) has been filed by the Appellant Ram Kuber challenging the

Judgment and Order on Sentence dated 12.08.2024 and 23.10.2024

respectively, whereby he has been convicted and sentenced to undergo for

12 years RI and a fine of Rs.4,000/- under Section 376(2)/506(II) IPC and

Section 5(1) punishable under Section 6 of POCSO Act, 2012.

2. The brief facts are that on 19.07.2018 on receipt of DD No.36B,

Inspector Sushila reached Dr. BSA Hospital, where she met W/Ct. Anjali,

HC Ram Bany, ASI Sandeep and Survivor „A @ S‟ along with her Nani

„K‟. The survivor stated that she along with her Nani, is residing at the

given address for the previous 10 days. Her parents reside at Panipat and she

had studied upto 5

th

class. She had five sisters and one brother. Her father

used to work in a factory while her mother was a housewife. She knew the

Accused as he used to reside in the gali, next to her house. On the last

Wednesday, when her Nani had gone to the Hospital, he took her to his

house on the pretext of eating meat, where he did wrong act with her. He

removed her clothes and inserted his private part in her private part and

scratched her chest. She raised an alarm on which Accused gagged her

mouth and threatened that if she disclosed the incident to anyone, he would

kill her with his truck, of which he was the driver. Because of the fear, she

did not disclose about the incident to anyone. The Appellant had been doing

wrong act with her for the last eight days.

3. On the day of alleged incident, her Nani came to the house of the

Appellant and saved her from him. Thereafter, she called the PCR. On the

basis of the statement of the Prosecutrix, the FIR was lodged. During the

investigations, her statement under Section 164 Cr.P.C was recorded. The

CRL. A.109/2025 Page 3 of 22

medical examination of the Prosecutrix and the Appellant was also got done.

Upon completion of investigations, Chargesheet was filed in the Court.

4. The Charges were framed on 04.12.2017 under Section

363/366A/376(2)(i) IPC and Section 6 POCSO Act. The Appellant pleaded

not guilty and claimed trial.

5. The Prosecution in support of its case examined eight witnesses.

6. PW1 is the Prosecutrix who has deposed about the entire incident.

She has proved her Complaint as Ex.PW1/A. The Statement under Section

164 Cr.P.C is Ex.PW1/B. The Pointing Out Memo of the place of incident is

Ex.PW1/C and the Seizure Memo is Ex.PW1/D.

7. PW2 Satbir Singh Yadav teacher from Nigam Pratibha Balika

Vidyalaya, Delhi produced the school record of the Prosecutrix and the

Admission and Withdrawal Register of the School as PW2/A. The

Admission Form Ex.PW2/B and the copy of Birth Certificate is Ex.PW2/C

and the Certificate regarding the Admission and Date of Birth of child is

Ex.PW2/D. He deposed that as per the School record the Date of Birth of the

child is mentioned as 23.10.2005.

8. PW3 is the Mami of the Prosecutrix who has corroborated about the

incident.

9. PW4 HC Naresh is the MHC(M) who has proved the entries in the

Malkhana Register. He has also proved the Road Certificate dated

24.07.2018 vide which the parcels were sent to FSL and the receiving of

FSL given on return of Const. Virender which is Ex.PW4/D.

10. PW5 Smt. K is the Nani of the Prosecutrix who has deposed on

similar lines as PW1 and PW3.

CRL. A.109/2025 Page 4 of 22

11. PW6 Kabir is the neighbour who deposed that on 19.07.2018 at

about midnight, the grandmother of the victim had come to his house and

narrated about the wrong act by the Appellant on her granddaughter. He

along with the Nani had gone to the house of the Appellant where he saw the

victim and the maternal aunt also present along with the Appellant. He gave

a slap to him and thereafter Nani and Mami of the victim started demanding

money from the Appellant.

12. PW7 Dr. Neha Aggarwal had proved the MLC Ex.PW7/A.

13. PW8 Inspector Sushila is the Investigating Officer, who has proved

the investigations undertaken by her.

14. The Accused/Appellant in his Statement under Section 294 Cr.P.C

dated 01.11.2022 had admitted the Statement of the Prosecutrix under

Section 164 Cr.P.C Ex.PW1/B; DD No.36B dated 19.07.2018 as Ex.P1;

MLC as Ex.P2; FIR as Ex.P3; the Potency Report prepared by Dr. Mukesh

Kumar as Ex.P4; Disability Certificate of the victim as Ex.P5 and FSL

Report dated 14.02.2019 as Ex.P6.

15. Thereafter, the Statement of the Appellant was recorded under

Section 313 Cr.P.C on 10.04.2024, wherein he claimed that a false case has

been registered with motivated intentions. He asserted that on account of

pre-existing disputes between himself and the family of the Prosecutrix, this

false FIR was registered against him, though the same was not recorded by

the learned Trial Court.

16. The learned ASJ after due consideration of the evidence convicted

the Appellant under Section 376(2)/506(ii) IPC and Section POCSO Act

and sentenced him to undergo RI for 12 years with fine of Rs.4,000/-.

CRL. A.109/2025 Page 5 of 22

17. Aggrieved by the Conviction and Sentence, it has been challenged on

the ground that the Prosecutrix/ PW1 was the only eye witness to the

alleged incident. She being a child witness was susceptible to tutoring and

her testimony require careful scrutiny. The learned ASJ had relied on

Nivtutti Pandurang Korkte and Ors. vs. State of Maharashtra AIR 2008 SC

1460 to state that first it has to be ensured that the child witness is free from

any kind of tutoring and influencing and only after the testimony finds

adequate corroboration that the statement can be relied upon. In the present

case, the child witness was under influence and her testimony was not

properly corroborated.

18. It has not been appreciated that there were material discrepancies in

the Prosecution evidence entitling the Appellant to a benefit of doubt. The

case was not proved beyond reasonable doubt as there were various lacunae

and gap in the Prosecution case. In the absence of any reliable eye witness, it

becomes a case of circumstantial evidence. To convict an Accused on

circumstantial evidence, there must be a complete chain so as to lead to the

irresistible conclusion consistent with the guilt of the Accused and it must

show that in all human probability the act was done by the Accused.

19. It is further submitted that the Prosecutrix was about 17 years old as

per the School records and as a rule of prudence, her testimony should have

been considered closely. Reliance is placed on Rameshwar vs. State of

Rajasthan AIR 1952 SC 54 and State of M.P. vs. Ramesh (2011) 4 SCC 786.

20. It is further asserted that no biological sample of the Appellant was

traced from the body or from the clothes of the Prosecutrix. No DNA of the

Appellant could be matched with the samples collected from the victim on

CRL. A.109/2025 Page 6 of 22

which sexual assault was alleged to have been committed on the victim.

The DNA profile does not support the case of the Prosecution. Instead of

giving the benefit, the same has been read in favour of the Prosecutrix and

no benefit has been given to the Appellant.

21. It is further contended that PW6 in his cross-examination had deposed

that the maternal grandmother of the survivor demanded Rs.50,000/- from

the Appellant to settle the matter. Moreover, in the cross-examination of

PW1 and PW3, suggestions have been given that on account of a quarrel

about monetary transactions between the Appellant and Respondent No.3,

he has been implicated falsely in this case. The benefit of the same should

have been extended to the Appellant as it clearly indicates that the

Complaint was motivated.

22. It is further submitted that no public witness was joined in the

investigations except PW6, but he also turned hostile. The testimony of PW6

was also brushed aside by observing that it is common knowledge that

public persons do not get involved in the investigation despite request and

generally do not want to waste their time in Police investigations. Reliance

is placed on Dharmander Singh @ Saheb vs. State (Govt. of NCT of Delhi)

(2020) 275 DLT 49 to assert that first Prosecution has to establish the facts

which forms the basis of presumption and before a negative is to be proved

by the Accused, but these principles have been overlooked by the learned

ASJ.

23. The PW1, PW3 and PW5 were interested witnesses and their

testimonies were full of contradictions which fully reflected that they were

CRL. A.109/2025 Page 7 of 22

not speaking the truth. During the investigations, various aspects of the

Prosecution story were found to be false.

24. The Prosecutrix was not a minor. As per the School records she was

17 years of aged, but claimed herself to be 13 years old. Her mental capacity

is also under a doubt as the Court observed her to be „slow‟. The Medical

Expert PW7 was also unsure if the hymen of the Prosecutrix had ruptured.

The presumption under Section 29 POCSO Act was invoked and the burden

was placed on the Appellant which is against the tenets of law. It is for the

Prosecution to prove the guilt of the Accused beyond reasonable doubt and

the prosecution has to stand on its legs. It is not the duty of the Accused to

show why he has been implicated falsely in this case. The totality of the

circumstances points that the Appellant was not the perpetrator of crime but

has been falsely implicated in this case. Reliance is placed on State of

Haryana vs. Shamsher Singh 2006 (3) RCR (Criminal) 345; State vs. Rahul

2011 (2) JCC 701; Sunil Kumar vs. State 181 (2011) DLT 528; State of

Uttar Pradesh vs. Ram Veer Singh & Ors. AIR 2007 SC 3075; Sharad

Birdhi Chand Sarda vs. State of Maharashtra 1984 SCC (4) 116; Swaran

Singh Ratan Singh vs. State of Punjab AIR 1957 SC 637.

25. In the end it is contended that the quantum of sentence is harsh and

uncalled for. Leniency should have been shown to the Appellant in the given

facts and circumstances. A prayer is, therefore, made that the Conviction

and Sentence be set aside.

26. A Status Report has been filed on behalf of the State, wherein the

entire investigations and the trial has been narrated.

CRL. A.109/2025 Page 8 of 22

27. The written submissions have been filed on behalf of the Appellant

reiterating the grounds as taken in the Appeal.

28. The written synopsis have also been filed on behalf of the

Prosecutrix, wherein it is stated Appellant was 56 years old at the time of

commission of offence on 19.07.2018, while the Prosecutrix was barely 12

years 9 months old, who has an amputated left hand and suffers from

epilepsy and history of seizure episodes.

29. It is submitted that the Appellant committed penetrated rape on the

Prosecutrix for a period of 8 days between 11.07.2018 to 19.07.2018 at his

jhuggi by luring and offering her food, specifically meat. The Prosecutrix‟s

testimony is unblemished, consistent and impeccable apart from minor

inconsistencies which do not go to the root of the matter. The Apex Court in

the case of Ganesan vs. State, 2020 INSC 596, wherein it has been held that

the sole testimony of the victim can be a basis of conviction provided she is

reliable and trustworthy. Since, she is not an accomplice but a victim of

another person‟s lust.

30. Furthermore, PW5 grandmother of the Prosecutrix (Nani) who was

the sole eye witness to the incident has fully corroborated the Prosecution

story. Her testimony also remains unshaken and consistent throughout the

cross-examination. The Prosecutrix‟s MLC stated that there were fresh

stains of blood, semen mud etc. found on her, pointing towards the act of

repeated rape committed by the Appellant when he was caught by PW5.

31. Further, while FSL Report recorded that “DNA profile generated from

source of 2j1, 2j2 & 2j3 and 2k did not match the DNA profile generated

from 1a1 (blood sample of convict)”, it is significant to note that the said

CRL. A.109/2025 Page 9 of 22

Report also confirmed detection of “Human semen was detected on 2jl

(vaginal swab), 2j2 & 2j3 (vaginal smear) and 2k (cervical swab)”. It raises

a strong inference regarding the possibility of commission of sexual act

involving penetration by the Appellant.

32. It is a settled principle of law that witness is not required to give all

these minute details. The medical evidence completely improbabilises the

ocular evidence, and the same cannot be discarded. Reliance is placed on

Abdul Sayeed vs. State of Madhya Pradesh, 2010 (10) SCC 259, wherein it

was held that where there is a contradiction between medical evidence and

ocular evidence, then the principle can be crystallized that though ocular

evidence of the witness has greater evidentiary value vis-a-vis the medical

evidence, but where medical evidence makes ocular evidence improbable,

then it becomes a relevant factor in the process of evaluation of evidence.

33. It is submitted on behalf of the Prosecutrix that even though the FSL

Report did not support the Prosecution case fully, but the findings in the

MLC and also presence of human semen in the vaginal swab, smear and

cervical swab of the Prosecutrix is clearly indicative of commission of rape.

The oral evidence of PW5 has been rightly given due weightage over the

forensic evidence, i.e., the FSL Report.

34. It is thus, argued that even though PW6, the neighbour retracted from

his earlier statement given to the Police under Section 161 Cr.P.C and turned

hostile, but he stated that when Nani of the victim came to his house, she

stated that Appellant used to do wrong act upon her granddaughter. He along

with the Nani went in front of the house of the Appellant, where he saw the

CRL. A.109/2025 Page 10 of 22

Prosecutrix, maternal aunt (Mami of the victim) were already present along

with the Appellant.

35. The core of this testimony without prejudice to the incorrect and

wholly inaccurate allegations made by him qua PW3 Mami and PW5 Nani,

remains that he was present at the site; he does not dispute that he saw the

Prosecutrix‟s Mami and the Appellant at the site of the incident i.e. jhuggi.

The testimony of PW3 and PW5, therefore, is un-impeached on these

aspects. The testimony of PW6 about alleged demand of Rs.50,000/- by

PW3 and PW5 from the Appellant; slap to Appellant by him when he

reached the jhuggi and history of extortion by PW3 and PW5 is evidentially

a concocted narrative and fails to inspire confidence or satisfy the rigours of

criminal law. A prayer is, therefore, made that the Appeal may be dismissed.

Submissions heard and record perused.

36. The Appellant has been charged with repeated rape of a 13-year-old

Prosecutrix over a period of seven days when he was caught by the maternal

grandmother on the 8

th

day, who also was a witness to the incident.

37. The first aspect under challenge, is the age of the Prosecutrix. It is

vehemently contended on behalf of the Appellant that the child was around

17 years but has falsely claimed to be 13-year-old at the time of incident.

38. In order to prove the age of the child, the Prosecution examined PW-

2, Satbir Singh Yadav, teacher at Nigam Pratibha Balika Vidyalaya,

Samaipur Old-1, Delhi-110042, who produced the admission and

withdrawal register of the school, which is Ex.PW-2/A. The Admission

Form of the Prosecutrix along with the copy of the Birth Certificate, were

also proved as Ex.PW-2/B and PW-2/C respectively. In all these documents,

CRL. A.109/2025 Page 11 of 22

the Date of Birth of the Prosecutrix was recorded as 23.10.2005. There was

not even a suggestion given to PW-2 that the school records were

manipulated or that the child was 17 years old. In fact, no such suggestion

was given to any of the Prosecution witnesses by the Appellant. It is only

during the course of the arguments that the age of the child, has been

claimed to be 17 years and not 13 years.

39. The record and the Prosecution, has proved beyond reasonable doubt

that the age of the Prosecutrix, was 13 years at the time of incident. Even if

for the sake of arguments, though without any evidence of the Appellant, is

accepted that the child was 17 years old, then too she was below 18 years of

age and the POCSO Act was attracted. It is held that the learned ASJ

rightly concluded the age of the child as 13 years.

40. The second material aspect is the proof of the incident. The first

material witness is PW-5, Smt. „K‟, maternal grandmother of the victim,

who discovered the incident in the night of 18/19.07.2018. She in her

testimony deposed that her granddaughter, who was residing with her at the

time of incident, was found missing from the house at about 03:00 a.m. She

asked her son „RO‟ about the victim, who informed her that he had seen her

going towards the gali and that he had also seen the Appellant, who resides

in the neighbourhood. She with her daughter-in-law „R‟ (PW-3) and

neighbour, Kabir started looking for the child. She on peeping through a gap

from the door of the Appellant saw that the Prosecutrix was lying on the

single bed inside the house of the Appellant. Her lower clothes had been

removed. They also saw that the Appellant was lying over the victim. They

took the victim to their house and asked her about the incident. She told

CRL. A.109/2025 Page 12 of 22

them about how she was being sexually exploited repeatedly for last one

week. While they brought the victim to the house, the Appellant/Accused

fled away from his house. In the morning, she along with her daughter-in-

law, „R‟ (PW-3) made a call to the Police. The Police came and she along

with the Prosecutrix, went to the Police Station from where she was taken

for medical examination and thereafter, the Statement of the victim, was

recorded. Even though, the witness was cross-examined at length on behalf

of the Appellant but nothing material emerged except that the left hand of

the child, was amputated when she was five-year-old.

41. The next material witness is PW-1, the Prosecutrix, who corroborated

the testimony of PW-5. She deposed that she had studied till Class V

th

and

was residing with her maternal grandmother. Though, she did not remember

the date but it was a winter month. The Appellant on the pretext of serving

her with meat, took her and did “galat kaam” with her. She explained that he

removed her clothes and thereafter “apna Susu mere Susu main daal diya

aur ussne meri Chhati bhi dabaayi, aur jab mein chillayi toh ussne mera

mooh daba diya aur mujhe dhamki di ki agar kisi ko iss baare main bataya

toh tere ooper truck chalwa doonga. Usske baad main ghar wapis aa gayi.”

She further deposed that on that day, her Nani had gone to the Hospital and

because of the fear, she did not inform her about the incident. The Appellant

continued to do galat harkaten for eight days. She further deposed that the

Appellant forcibly made her drink beer. In the similar manner, he was doing

„galat kaam’ with her and she out of pain was screaming and on hearing her

sound, her Nani reached the Jhuggi of the Appellant and saved her. Her

Mami had also come to the Jhuggi of the Appellant.

CRL. A.109/2025 Page 13 of 22

42. Her Mami called the Police, who came and took them to the hospital.

Thereafter, the Police recorded her Statement, Ex.PW-1/A, which bears her

signatures and also the thumb impression of the Nani.

43. This witness i.e. prosecutrix further explained that she had led the

Police to the place of incident from where one dari and one kapda with

which, the Appellant used to wipe himself after the incident, which was

seized by the Police vide Memo Ex.PW-1/D. The Prosecutrix clarified in her

cross-examination that whenever she accompanied the Appellant, she did

not meet any known person on her way. The Appellant used to take her to

his house at about 03:00 and leave her in the evening at about 06:00 pm. She

further clarified that she was never sexually assaulted by the Appellant in

the truck and she volunteered that he always did the „galat kaam‟ in his

Jhuggi.

44. The testimony of PW-5 and PW-1, finds further corroboration from

the testimony of PW-3, Ms. ‘R’, the mami of the Prosecutrix, who

explained that earlier, the mother of the Prosecutrix along with her husband

and children, used to live in the neighbourhood, however, a few days before

the incident, she along with her husband and children, shifted to Panipat

while the Prosecutrix was left with the maternal aunt. She corroborated that

on 18/19.07.2018 her mother-in-law/Nani of the child, came to her while

searching for the Prosecutrix and informed her that she was not at home.

Thereafter, they all started looking for her. While searching for the

Prosecutrix, they reached the Jhuggi of the Appellant and saw that the

Prosecutrix was present inside his Jhuggi and the Appellant “uske saath

galat kaam kar raha tha. Phir meri saas ne mujhe bulaya. Wahan par maine

CRL. A.109/2025 Page 14 of 22

dekha ki accused bina kapdo ke khada tha. Victim ke sharir par bhi koi

kapda nahi tha, lekin who apne sharir par kapda lapetkar wahan se nikal

gayi. Qadir naam ka vyakti bhi wahan aa gaya tha”. Thereafter, she called

the Police at No.100, who came and they all went to the Police Station while

the Appellant ran away. In her cross-examination, there was no material

contradiction, which emerged except that a suggestion was given that the

Applicant was implicated falsely on account of some money transactions

between him and the grandmother.

45. From the testimony of the aforesaid three witnesses, it emerges that

they all have been consistent about the incident. They have coherently and

consistently deposed that the child was being raped by the Appellant since

last eight days, but was caught red handed in the night of 18/19.07.2018.

46. It is significant to note that the entire testimony of the three witnesses,

was consistent to the incidents as first recorded in the Complaint, Ex.1/A

vide which the Statement of the child/ Prosecutrix, was recorded wherein

she had stated the incident as deposed by her in the testimony.

47. The one aspect, which emerges, is that while the incident had

happened at about 03:00 am in the night of 18/19.07.2018. PW-3, „R‟ has

deposed that she had then in the morning, made the call to the Police after

which, the Police arrived and the investigations were undertaken. PW-8,

Inspector Sushila has deposed that on receiving DD No. 36B, she had

reached at Dr. BSA Hospital, Rohini, Delhi where ASI Sandeep, Head

Constable Ram Babu and W. Ct. Anjali, along with the Prosecutrix and her

grandmother „K‟, were present. The medical examination of the child was

conducted vide MLC Ex.P2. She corroborates that she recorded the

CRL. A.109/2025 Page 15 of 22

Statement of the child/ Prosecutrix, Ex.PW-1/A, which has the signatures of

the Prosecutrix and the FIR, Ex.P3, got registered.

48. At the instance of the Prosecutrix thereafter, she along with the

grandmother, Prosecutrix and the Head Constable, Pawan, went to Sanjay

Colony where maternal grandmother Smt. „R‟ also joined the investigations.

The Prosecutrix took them to the place of occurrence and she prepared the

Site Plan, Ex.PW-1/C. At her instance, a bed was lying in the Jhuggi and a

„dari‟ like cloth was lying on that bed. A small piece of cloth was also found

lying on the bed. At the pointing out of the victim, the Prosecutrix the dari

and the piece of white cloth, were seized vide Memo Ex.PW-1/D. All the

seized articles were sent to FSL.

49. The next significant piece of evidence was the MLC of the child,

which is Ex.PW-7/A. The internal examination of the child was done.

According to the MLC of the child, the body fluid collection, clipping of

pubic hair, oral swab... of the child, were taken and sealed and handed over

to the Investigating Officer.

50. Learned counsel for the Appellant, had vehemently contended that the

Statement of the child under Section 164 of the Code of Criminal Procedure,

1973, Ex.PW-1/B was totally contrary to her Statement, Ex.PW-1/A and her

testimony in the Court rendering her testimony, completely unbelievable.

The Prosecutrix in her Statement under Section 164 Cr.PC stated that the

Appellant made her drink beer. There were two other girls present and did

oil massage on his body while he was naked. Thereafter, he got on top of her

her and slept. He used the condom and ... He made her spread the legs and

did the „galat kaam’. He also threatened that if she did not agree, he would

CRL. A.109/2025 Page 16 of 22

run his truck over her. She screamed on which, her Nani, Mami and Kadir,

reached the spot.

51. Pertinently, the entire incident of how she was sexually assaulted is by

large on the same lines except that she claimed that the incident happened in

the truck. However, she also deposed that the Appellant had done the „galat

kaam’ and she had suffered pain. Her Statement also stated about her Nani,

Mami and Kadir, reaching the spot. Pertinently, the Prosecutrix in her

testimony had denied that any incident had happened while they were in the

truck. It is evident that the entire incident is consistent though, there may

have been slight evasion in the Statement under Section 164 Cr.PC but as

has been rightly observed by the learned ASJ, such minor deviations have to

be considered in the light of the fact that the Prosecutrix was a child of 14

years and she may not have been able to narrate the incident in the exact

words and there may be a likelihood of adding some sentences, which had

not been stated earlier.

52. However, considering the consistent testimony of the child in her own

Complaint and her testimony in the Court, which is fully corroborated by the

testimony of PW-3 and PW-5 and also by PW-8, SI Sushila, who had

conducted the incident, such were deviations in her Statement under Section

164Cr.PC, which was recorded after her Complaint, Ex.PW-1/A, cannot be

given over exaggerated emphasis.

53. Another important witness examined by the Prosecution was PW-6,

Mr. Kabir, who was a neighbour and an independent witness. He also

corroborated that on the date of incident i.e. 19.07.2018 at about 12:00

midnight, while he was sleeping in his house, maternal grandmother of the

CRL. A.109/2025 Page 17 of 22

victim, came to his house and stated that the Appellant has done a wrong act

with her granddaughter. He along with Nani, went to the house of the

Appellant where he saw the victim and maternal aunt of the victim also

present along with the Appellant. He gave a slap to the Appellant as he had

been informed by the maternal grandmother that he had done wrong act with

the granddaughter.

54. This witness, PW-6, Mr. Kabir however, was cross-examined by the

Additional PP wherein he denied that he had taken out the victim „S‟ from

the Jhuggi of the Appellant or that the victim had told her Nani that the

Appellant used to do the wrong acts upon her or that he had been

committing rape since last seven days. The witness was cross-examined by

the Appellant but again, nothing emerged in the cross-examination. He

further denied that when he confronted the Appellant with the allegations

made against him by the victim as he confessed and thereafter, fled from the

spot. However, in his cross-examination, he reaffirmed that he had slapped

the Appellant, on the night of the incident. This witness is an independent

neighbour, who also has reaffirmed about he being approached by the Nani

in the middle of the night, who informed her about the child being raped by

the Appellant.

55. The testimony of PW-6, Mr. Kabir assumes significance in the light

of the principle of res gestea provided in Section 6 of the Indian Evidence

Act. Immediately after the incident, Nani had admittedly gone to the house

of PW-6 and narrated the incident. The spontaneity and the natural conduct

of the Appellant of Nani in approaching the neighbour, reflects the

genuineness of the testimony. The witness may have denied being told about

CRL. A.109/2025 Page 18 of 22

the incident, but admitted having that he had accompanied the Nani to the

Jhuggi of the Appellant where he had found the Appellant, the Prosecutrix

and the Mami present and he had also slapped the Appellant. His presence

and the narration of the incident by PW-1, PW-3 and PW-5, fully stands

corroborated by PW-6, the independent witness.

56. It was argued on behalf of the Appellant that in fact, no such incident

had taken place, but there was a money transaction between the Appellant

and the maternal aunt grandmother on account of which, he has been falsely

implicated.

57. Firstly, aside from taking a vague plea of there being a monetary

transaction, no specific details of the nature of transaction, the amount

involved or any other particular, has been suggested by the Appellant, in the

cross-examination of any of the Prosecution witnesses; so much so that he

had not even stated about it in his Statement under Section 313 Cr.P.C.

where he had merely asserted that he was implicated falsely.

58. Secondly, much argument has been sought to be built on the

testimony of PW-6 wherein he deposed that Nani and Mami of the victim,

started demanding money from the Appellant out of which, he reached the

spot. In his cross-examination, he further deposed that when Nani and Mami

of the victim, came to his house again in the next morning, they told him

that they were demanding Rs.50,000/- from the Appellant but he was not

giving the money. He refused to mediate between them for money

transaction. Nani of the victim then told him that if he did not give

Rs.50,000/- then he will go to jail after which, they all left. This testimony

of PW-6, further reinforces that after the incident happened, the Nani and

CRL. A.109/2025 Page 19 of 22

Mami wanted the money to not report the incident to the Police but when he

did not agree to give them the money, the matter got reported in the

morning. It is pertinent to note that this has not established that there were

any money transactions; rather it reflects that after the happening of the

incident, the Nani and Mami wanted the money for not reporting the

incident. It, in no way, supports the defence of the Appellant that there was

money transaction rather it reinforces that the incident did happen in the

middle of the night and in order to not report, a money demand was made on

behalf of the Prosecutrix.

59. The other important and pertinent piece of evidence was the FSL

wherein the DNA of the Appellant, did not match that of the Prosecutrix. It

is significant to note that the Prosecutrix in her Statement under Section 164

Cr.P.C. had stated that the Appellant had used the condom, which becomes a

significant aspect to explain the non-presence of semen or matching of DNA

of the Appellant, with that of the Prosecutrix.

60. Additionally, the alleged act happened before 03:00 AM in the night

of 18/19.07.2018, when the Complainant found the victim missing. The

Nani and the family members of the victim called the Police at 14:09 PM

and the Victim was taken to the Hospital at about 11:00 AM and MLC was

made at 13:59 PM on 19.07.2018. Considering the time gap between the

alleged incident and the time when the medical examination was conducted,

the not matching of DNA and the inconclusive FSL Report is quite

comprehendible and does not discredit the case of the Prosecution.

61. The overwhelming evidence led by the Prosecution, establishes the

act of rape of the Prosecutrix, who was not only 13 years old but was also

CRL. A.109/2025 Page 20 of 22

suffering from amputation of arm by the Appellant. The minor discrepancy

in the Statement under Section 164 of Cr.P.C of the Prosecutrix cannot be

the ground to discredit the entire evidence of the Prosecutrix. The testimony

of the Prosecutrix was consistent and they corroborated by other witnesses.

62. In the case of Appabhai vs. State of Gujarat, 1988 Supp SCC 241, the

Apex Court had observed that the Court while appreciating the evidence

must not attach undue importance to minor discrepancies. Those

discrepancies which do not shake the basic version of the Prosecution Case

must be discarded. The discrepancies may be due to normal errors of

perception or observation, which should not be given importance. The errors

may also be due to lapse of memory for which due allowance must be given.

The Court by calling into aid its vast experience of men and matters in

different cases must evaluate the entire material on record by excluding the

exaggerated version given by any witness. When a doubt arises in respect of

certain facts alleged by such witness, the proper course is to ignore that fact

only unless it goes into the root of the matter so as to demolish the entire

prosecution story. The witnesses nowadays go on adding embellishments to

their version perhaps for the fear of their testimony being rejected by the

Court. The Courts, however, should not disbelieve the evidence of such

witness‟s altogether if they are otherwise trustworthy.

63. Similarly, in the case of State of Punjab vs Gurmit Singh (1996) 2

SCC 384, the Apex Court reaffirmed that the testimony of a victim of rape,

must be dealt with utmost sensitivity. The Court must examine the broader

probabilities of the Case and not be swayed by w minor contradictions or

insignificant discrepancies in the Statement of the Prosecutrix, which is not

CRL. A.109/2025 Page 21 of 22

of a fatal nature, to throw out an otherwise reliable prosecution case. If the

evidence of the prosecutrix inspires confidence, it must be relied upon

without seeking corroboration of her Statement in material particulars.

64. Similar observations were been made by the Hon‟ble Supreme Court

of India in State of H.P. vs. Sanjay Kumar (2017) 2 SCC 51. It was observed

that unless there is compelling reason which necessitate looking for

corroboration of a statement, the Courts should find no difficulty to act on

the testimony of the victim of a sexual assault alone to convict the accused,

to seek corroboration to the Statement before relying upon the same as a

rule, in such cases, would literally amount to adding insult to injury.

65. The testimony of the Prosecutrix thus, has to be taken as a whole. In

the present Case, the testimony of the Prosecutrix not only has been

consistent but she has withstood the test of cross-examination despite being

a young child of the 13 years.

66. Not only this, her testimony stands fully corroborated by that of PW-

3, the Mami, PW-5, the Nani and PW-6, who is an independent neighbour.

Conclusion:

67. Learned ASJ has rightly held that there was overwhelming evidence

to convict the Appellant and there was nothing on record, to suggest false

implication of the Appellant.

68. The Appellant has been rightly convicted and Sentenced by the

learned ASJ.

69. There is no merit in the present Appeal, which is hereby dismissed.

CRL. A.109/2025 Page 22 of 22

70. The Appeal is disposed of accordingly, along with pending

Application(s), if any.

(NEENA BANSAL KRISHNA )

JUDGE

JANUARY 06, 2026/ VA/RS