CRL.A. 1469/2010 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of reserving Judgment: 9

th

March, 2026

Date of decision: 7

th

April, 2026

IN THE MATTER OF:

+ CRL.A. 1469/2010 & CRL.M.(BAIL) 2542/2025

SUBHASH @ BABLOO .....Appellant

Through: Mr. Chetan Bhardwaj & Mr. Priyal

Bhardwaj, Advs.

versus

STATE (NCT OF DELHI) .....Respondent

Through: Mr. Satinder Singh Bawa, APP for

the State with SI Priyanta, PS Lodhi

Colony.

Mr. Sanjay Gupta (DHCLSC) for

prosecutrix.

CORAM:

HON'BLE MR. JUSTICE VIMAL KUMAR YADAV

JUDGMENT

VIMAL KUMAR YADAV , J.

1. Appellant Subhash @ Babloo was held guilty under Section

363/366/376 Indian Penal Code („IPC‟) vide the impugned judgment dated

10.08.2010 and was sentenced to undergo Rigorous Imprisonment (RI)

through the order on sentence dated 11.08.2010, whereby RI for a period of

two years and fine of Rs. 2,000/- was awarded under Section 363 IPC, in

default of payment of fine, he was directed to undergo Simple Imprisonment

(SI) for one month. Whereas, Appellant was awarded RI for a period of three

years and fine of Rs. 2,000/- under Section 366 IPC, with rider that in

default of payment of fine, he shall undergo SI for a period of 2 months and

CRL.A. 1469/2010 Page 2 of 17

finally, he was sentenced to undergo RI for a period of 7 years and fine of

Rs. 5,000/- for the offence under Section 376 IPC, in default of payment of

fine, he was sentenced to undergo simple imprisonment for a period of 3

months.

2. Assailing the aforesaid judgment of conviction and the sentence

awarded, the Appellant preferred the instant appeal, which is hereby

disposed of.

3. The indispensable facts are required to be looked into before

adverting into the details and intricacies of the contentions raised by the rival

parties. The Appellant and the prosecutrix were known to each other. The

conduct of the prosecutrix reflect that she had reposed a lot of faith in the

Appellant, inasmuch as when she was scolded by her mother on being late

from the tuition on 06.03.2008 and apprehending that her brother would also

scold her, she straight away went to the Appellant and insisted that he should

marry her and that she would not go back to her place as stated in the

statement under Section 164 Cr.P.C. However, there is a different version

too, according to which it was the Appellant, who kidnapped her and took

the victim to his native place in Kangra, Himachal Pradesh, where he

married her in a temple and also had sexual intercourse.

4. The matter was reported to the police by the brother of the prosecutrix

when she did not return home on 06.03.2008. The complaint lodged by the

brother of the prosecutrix, namely, Rafiq Ahmed, resulted in the registration

of FIR No. 56/2008, under Section 363 IPC. One phone call from the victim,

seemingly gave a breakthrough in the instant case and the police team, along

with the brother of the prosecutrix reached Himachal Pradesh, at the native

place of the Appellant, from where the Appellant was arrested and the

prosecutrix was recovered on 12.03.2008 and both were brought to Delhi.

CRL.A. 1469/2010 Page 3 of 17

5. Investigation was carried out including medical examination of the

victim and the Appellant and other incidentals, that is, preparation of various

documents, seizure of photos, recording of statements etc. and finally

chargesheet was filed under Section 363/366/376 IPC.

6. To the charges framed under Section 363/366/376 IPC, the Appellant

pleaded not guilty. Prosecution came up with examination of 14 witnesses,

thereafter, statement of the accused was recorded in which he not only

clarified, but gave his version also. According to him, the prosecutrix and

the Appellant were in love with each other and on the insistence of the

prosecutrix, the Appellant took her to his native place and married her.

Whatever happened had happened with the consent and insistence of

prosecutrix. He opted to bring evidence in his defence and apart from his

father, examined himself, as DW-1 and DW-2 respectively.

7. As aforesaid, the trial resulted in conviction of the Appellant followed

by the sentence as detailed at the outset. Assailing the impugned judgement,

the main plank of the Appellant is that there was no element of force,

coercion or any malafide on the part of the Appellant, since it was the

insistence of the prosecutrix, which in a way, forced the Appellant to take

the prosecutrix to his native place. He did not establish physical relations

with the prosecutrix prior to the marriage, which took place in a very simple

ceremony in a temple, and thereafter, only he had sexual intercourse with the

prosecutrix, as husband and wife. It is, thus, submitted that the Appellant

cannot be held responsible. It is asserted that the prosecutrix portrayed her

age as 19 years and that is why the marriage took place.

8. Primarily, the challenge to the impugned judgment is on two counts

that the prosecutrix was not a minor, rather major, and thus, was capable to

take her decisions. Apart from that, the aspect which has been highlighted by

CRL.A. 1469/2010 Page 4 of 17

learned counsel for the Appellant is that the narration on behalf of the

prosecutrix is so improbable that it cannot be believed and acted upon. The

prosecutrix had taken a clear and categorical stand in her statement under

Section 164 Cr.P.C., which totally supports the Appellant and his version,

whereas, under the influence of her family and pressure from the society, it

being an inter-religious marriage, the prosecutrix took the stand against the

Appellant before the Court during trial. However, her testimony is indicative

of the fact that what had been stated by her in her statement under Section

164 Cr.P.C., is, verily, the truth. Learned Counsel for the Appellant had

placed reliance on the following Judgments in order to support and

strengthen his contentions:-

(a) Jyoti Prakash Rai @ Jyoti Prakash vs. State of Bihar,

2008 (15) SCC 223;

(b) Shweta Gulati & Anr. vs. The State of Govt. of NCT of

Delhi, (2018) SCC Online Del 10448;

(c) P.Yuvaprakash vs. State Rep. By Inspector of Police

(2023), SCC Online SC 846; and

(d) Ram Suresh Singh vs. Prabhat Singh @ Chhotu Singh

& Anr., AIR 2009 Supreme Court 2805.

9. Learned APP for the State, on the other hand, came up with the plea

that the consent of the prosecutrix is immaterial in view of the fact that she is

a minor as can be seen from the records of the schools, where the prosecutix

studied. In any case, even if it is presumed that she had herself gone with the

Appellant, still it does not give any licence to the Appellant to rape her. In

these circumstances, learned APP for the State stood by the impugned

judgment and asserted that the same is based upon the evidence on record

and the applicable law.

CRL.A. 1469/2010 Page 5 of 17

10. The two aspects hold the key to the instant case. First, the age of the

prosecturix as to whether she was a minor or major at the relevant time?

Second aspect is, how reliable and credible her testimony is? As regards the

age, the guiding principle is under Section 94 of the Juvenile Justice Act,

2015, which almost akin to Rule 12 of Juvenile Justice Rules, 2007 which

provides as under:-

“Section 94. Presumption and determination of age.

(1) Where, it is obvious to the Committee or the Board, based on

the appearance of the person brought before it under any of the

provisions of this Act (other than for the purpose of giving

evidence) that the said person is a child, the Committee or the

Board shall record such observation stating the age of the child

as nearly as may be and proceed with the inquiry under section

14 or section 36, as the case may be, without waiting for further

confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds

for doubt regarding whether the person brought before it is a

child or not, the Committee or the Board, as the case may be,

shall undertake the process of age determination, by seeking

evidence by obtaining—

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board, if available; and in the absence

thereof;

(ii) the birth certificate given by a corporation or a

municipal authority or a panchayat

(iii)and only in the absence of (i) and (ii) above, age shall

be determined by an ossification test or any other latest

medical age determination test conducted on the orders

of the Committee or the Board:

(3) The age recorded by the Committee or the Board to be the

age of person so brought before it shall, for the purpose of this

Act, be deemed to be the true age of that person.”

11. However, in a recent judgment Hon‟ble Supreme Court fallen back on

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules,

CRL.A. 1469/2010 Page 6 of 17

2007 qua age determination in K.P. Kirankumar @ Kiran vs. State by

Peenaya Police Crl. Appeal No.5614/2025 arising out of SLP (Crl.)

No.11287/2025 dated 19.12. 2025, the observation made in Jarnail Singh v.

State of Haryana, 2013 SCC OnLine SC 507:

“23. Even though Rule 12 is strictly applicable only to determine the

age of a child in conflict with law, we are of the view that the

aforesaid statutory provision should be the basis for determining

age, even of a child who is a victim of crime. For, in our view, there

is hardly any difference insofar as the issue of minority is concerned,

between a child in conflict with law, and a child who is a victim of

crime. Therefore, in our considered opinion, it would be just and

appropriate to apply Rule 12 of the 2007 Rules, to determine the age

of the prosecutrix VW, PW 6. The manner of determining age

conclusively has been expressed in sub-rule (3) of Rule 12 extracted

above. Under the aforesaid provision, the age of a child is

ascertained by adopting the first available basis out of a number of

options postulated in Rule 12(3). If, in the scheme of options under

Rule 12(3), an option is expressed in a preceding clause, it has

overriding effect over an option expressed in a subsequent clause.

The highest rated option available would conclusively determine the

age of a minor. In the scheme of Rule 12(3), matriculation (or

equivalent) certificate of the child concerned is the highest rated

option. In case, the said certificate is available, no other evidence

can be relied upon. Only in the absence of the said certificate, Rule

12(3) envisages consideration of the date of birth entered in the

school first attended by the child. In case such an entry of date of

birth is available, the date of birth depicted therein is liable to be

treated as final and conclusive, and no other material is to be relied

upon. Only in the absence of such entry, Rule 12(3) postulates

reliance on a birth certificate issued by a corporation or a municipal

authority or a panchayat. Yet again, if such a certificate is available,

then no other material whatsoever is to be taken into consideration

for determining the age of the child concerned, as the said certificate

would conclusively determine the age of the child. It is only in the

absence of any of the aforesaid, that Rule 12(3) postulates the

determination of age of the child concerned, on the basis of medical

opinion.”

12. In the absence of certificate from the concerned examination board of

10

th

standard, the school records can be looked into, but then, as was

CRL.A. 1469/2010 Page 7 of 17

provided in Rule 12 of Juvenile Justice (Care and Protection of Children)

Rules 2007, the said school should not be „play school‟ but should be the

first attended school. There seems to be a reason as to why play school has

been excluded, but the first attended school has been given importance. The

attitude with regard to the play school could not be serious, therefore, that

has been ruled out and the first attended school has been given importance.

The reason seems to be the fact that the proper schooling commences after

the play school. Therefore, it is expected that the relevant records would be

correctly and truly incorporated.

13. In the instant case, the date of birth, according to the school records, is

from 6

th

standard. There is no record of the first attended school. It cannot be

presumed that the prosecutrix commenced her education from 6

th

standard

onwards. Therefore, the record produced by Admission Incharge of S.G.T.B.

Khalsa Girls Sr. Sec. School, Aliganj Lodhi Colony and from Govt. Co-Ed

Sr. Secondary School Laxmi Bai Nagar, do not fit in the bill of the first

attended school. As such, the date of birth i.e. 12.12.1993 coming in the

school records cannot be taken as the correct date of birth and that seems to

be the reason why the Investigating Agency also resorted to the „ossification

test‟. So for all practical purposes, it is the result of the „ossification test‟,

which is required to be looked into and relied upon.

14. The prosecution has examined PW-9 Naveen Sharma, TGT Maths,

Govt. Co-Ed Senior Secondary School, Laxmi Bai Nagar, New Delhi and

PW-10 Smt. Tajinder Kaur, Admission Incharge, GTB Khalsa Girls Senior

School, Aliganj, Lodhi Colony, New Delhi, to show that the date of birth of

the prosecutrix was 12.12.1993. PW-9 Naveen Sharma came with the

requisite record i.e. Admission and Withdrawal Register of the school,

according to which the prosecutrix was admitted in the school on 14.07.2004

CRL.A. 1469/2010 Page 8 of 17

in the 6

th

Standard and on 17.07.2006, her name was struck off from the

Rolls of the school. As per the school records, her date of birth is 12.12.1993

as could be seen from Ex.PW.9/A. On the basis of the School Leaving

Certificate issued by the Govt. Co-Ed Senior Secondary School, Laxmi Bai

Nagar, the prosecutrix was admitted and was studying in the 7

th

Standard in

S.G.T.B Khalsa. Sr. Sec. School and was a bonafide student of class 7

th

as

on 11.03.2008. PW-10 Smt. Tajinder Kaur also endorsed the fact deposed by

PW-9 about the date of birth being 12.12.1993. The relevant records brought

by her of the Admission and Withdrawal Register are Ex.PW10/A and

School Leaving Certificate is Ex.PW.10/B. The certificate issued by the

Principal, S.G.T.B Khalsa. Sr. Sec. School, Aliganj, Lodhi Colony, New

Delhi is Ex.PW10/C. Thus, according to the evidence on record, the date of

birth of prosecutrix was 12.12.1993 and accordingly her age as on the date

of offence i.e. 06.03.2008 was around 15 years.

15. The conjoint reading of the statement of PW-9 Naveen and PW-10

Smt. Tajinder Kaur, reveals that the prosecutrix was in 6

th

standard in 2004

and took admission in S.G.T.B. Khalsa Sr. Sec. School, Aliganj, Lodhi

Colony, New Delhi in 7

th

standard in the year 2008. No other inference can

be deduced from these facts except that the prosecutrix must have flunked in

6

th

standard. Incidentally, this falsifies a part of the deposition of PW-3 Rafiq

Ahmed, when he says that the sister did not fail in any class. The date with

regard to date of birth is not credible in this country unless based on sound

documentary evidence. To avoid such situation where a child is not

progressing normally or in order to tackle unforeseen circumstances, the

parents resort to incorrect date of birth, so that the progress in education and

progress in age may go hand in hand. The appearance of the prosecutrix in

the photos indicates that her age was more than what has been portrayed by

CRL.A. 1469/2010 Page 9 of 17

the prosecution.

16. However, the Investigating Agency did not stop therein so far as

determination of the age of the prosecutrix is concerned and got the

„Ossification Test‟ of the prosecutrix done. As deposed by PW-5 Bhuwan

Ram i.e. Record Clerk from AIIMS. The MLC of the prosecutrix i.e.

Ex.PW5/A was prepared by Dr. B.L. Chaudhary and Dr. Nidhi, both of

whom were not available in the hospital. He has also brought the X-Ray

report bearing No. 79826 dated 20.03.2008, which was examined by Dr. P.

Rajni Shankar and according to the Bone Age Test, the age of the

prosecutrix was more than 15.03 years and less than 16.04 years.

17. Determination of the age is very crucial for the outcome of the cases

of such nature, where there are two sets of evidence, with regard to the age

of the victim, one is her date of birth on the basis of school records.

Whereas, the other is the outcome of the „ossification test‟. As per the school

records, the age of the victim was 14 years, 2 months and 23 days, at the

relevant time.

18. What is the basis of recording the date of birth in the school is not

clear, as nothing has been brought on record in this context. It may be true

that there was no occasion with the parents of the prosecutrix to record any

incorrect date of birth, as they could not have perceived that such situation

would come in future where the age would become a very crucial factor.

Nevertheless, the determination of age should be on a sound basis. In the

absence of any document, the deposition or the material to fix the date of

birth as 12.12.1993, makes it a bit shaky and that seems to be the reason why

the investigating agency went for the ossification test.

19. The School Leaving Certificate and the Admission Withdrawal

Register should not be taken as gospel truth, unless the basis of furnishing

CRL.A. 1469/2010 Page 10 of 17

such an age is clearly noted in the records. In the instant case, there appears

to be nothing except that it was simply recorded in the school records.

However, in the cross-examination of the brother of the prosecutrix, PW-3

Rafiq Ahmed, it has come on record that their mother had filed an Affidavit

regarding the age of the prosecutrix. The relevant part of the testimony is

reproduced as under:-

“My sister Rukaiya had been studying in 7

th

class. She did not fail

in any class. At the time of her admission, I went along with my

mother to the school of my sister. At the time of admission,

affidavit of my mother was filed regarding age of my sister. No

birth certificate or its copy was given. The birth certificate

obtained was misplaced.”

20. The affidavit as referred by PW-3 Rafiq Ahmed, has not seen the light

of the day. As such, the date of birth given in the school records, cannot be

accepted as the correct date of birth, given the tendency in this country to

record a date of birth, which suits the parents or the circumstances. It is a

settled proposition of law that entries in school records are neither

conclusive nor foolproof proof of date of birth and can only be treated as

corroborative evidence, subject to proof of its source and authenticity.

21. This brings the ossification test report into contention. According to

the ossification test report Ex.PW-5/C, the age of the prosecutrix was more

than 15.3 years and less than 16.4 years. In this context, the legal proposition

is that the age reflected in the ossification test is not a definite proof and,

therefore, margin of error of 2 years (+ / -) has been recognized. Reference

in this context can be made to the two leading cases on the subject relied

upon by the Appellant in Jyoti Prakash Rai @ Jyoti Prakash’s case (supra)

and Ram Suresh Singh’s case (supra).

22. This may be read in favour of the victim too if the circumstances so

CRL.A. 1469/2010 Page 11 of 17

warrant. The margin of error is to be read in favour of the Accused /

Appellant. By this standard, the age of the prosecutrix can be taken as 18.4

years on the relevant date as the range available is between 13.3 years to

18.4 years. Once the prosecutrix is held to be 18 years plus, she becomes

capable of giving „consent‟ and may have impact on the offence(s), for

which the Appellant has been held guilty and convicted. Incidentally, the

Ossification test is not a conclusive test and proof of age and based on

approximation. In such circumstances, it is strange that the doctor has opined

the age in months too, that too with a kind of certainity about even number

of months.

23. The contentions raised on behalf of the learned APP for the State that

the consent was missing and even if it is presumed that the prosecutrix was

major and was capable of giving consent, still outcome remains unaltered in

view of substantive statement made before the Court. It is submitted that the

prosecutrix, in a way, was lured, intoxicated and was taken to Himachal

Pradesh by the Appellant, where he married the prosecutrix against her will

and had established physical relations, that too without the consent and

against the will of the prosecutrix, as has been categorically deposed by the

prosecutrix.

24. Learned counsel for the Appellant on the other hand, has submitted

that the true version of the prosecutrix is the one given in her statement

recorded under section 164 Cr.P.C. In addition to that, it has been pointed

out that the testimony of the prosecutrix is so improbable that it cannot be

trusted at all, to hold the Appellant guilty.

25. When the evidence of the prosecutrix is tested on the parameters of

credibility, truthfulness and trustworthiness, then it starts falling apart. The

prosecutrix and the Appellant were known to each other prior to the date of

CRL.A. 1469/2010 Page 12 of 17

incident and were probably having some sort of an amorous relationship.

The prosecutrix was spotted with Appellant in his car by the brother-in-law

(Jija) of the prosecutrix, as deposed by PW-3 Rafiq, that too for 2-3 months

prior to incident (Ex.PW3/A). The tone and tenor of her testimony reflects

that she trusted the Appellant so much that she went out to him in order to

save herself from being scolded by her brother Rafiq, of which she was

apprehensive of after being scolded by her mother. The testimony further

reflects that the prosecutrix returned late from her tuition classes on

06.03.2008, and she presumably, was moving around with the Appellant, as

she deposed before who asked the Appellant to drop her to her home, albeit

from tuition as she got late. The disclosure statement of Appellant and

statement of prosecutrix under section 161 Cr.P.C., albeit both not falling in

the definition of evidence but can be read for the Appellant, also reflect that

the Appellant and prosecutrix used to move around together in the car of the

Appellant.

26. Additionally, then again, even if it is presumed that the prosecutrix did

not voluntarily accompany the Appellant, then how she reached a small

village in Kangra, Himachal Pradesh from Delhi. She has deposed that the

Appellant had given her something to drink after which she became

unconscious and regained her consciousness when she reached Himachal

Pradesh. In such circumstances, how the Appellant managed to board the

bus with the prosecutrix in an unconscious condition? In a public transport,

such a situation is definitely going to attract the attention of the co-

passengers and the conductor, etc. There must have been some cogent

explanation to the fellow passengers, else every likelihood of the matter

being reported to the police available at the Bus Addas / Depot or at the

border check posts on the way from Delhi to Himachal Pradesh was there.

CRL.A. 1469/2010 Page 13 of 17

This factor renders the testimony of the victim unbelievable that she was

moved to Himachal Pradesh under some sort of intoxication. The only

possibility, thus, is the one as has been told before the learned Metropolitan

Magistrate under Section 164 Cr.P.C., that she herself accompanied the

Appellant. She being major, as observed hereinbefore and was voluntarily

going with the Appellant, therefore, the findings qua the offences under

Section 363 and 366 IPC come under cloud.

27. It is settled principle of law that in case of sexual offence(s) against

the females, the testimony of the victim alone is sufficient to nail down the

accused provided it is of sterling quality, trustworthy, impeccable and

credible. In such a scenario, the testimony of the victim is required to be

probed very minutely as that testimony even without corroboration has the

potential to hold a person gulity. Reference in this context can be made to

the judgments in Vijay vs. State of M.P., (2010) 8 SCC 191 and Sadashiv

Ramrao Hadbe vs. State of Maharashtra, (2006) 10 SCC 92. In Raju vs.

State of Madhya Pradesh, (2008) 15 SCC 133, a word of caution is given

while upholding the principle that sole testimony of prosecutrix is sufficient

to hold accused guilty by equating her with an injured‟s testimony. All this

stems from the fact that such sort of offences do not have any eye-witness /

witness other than the victim. Reference in this context can also made to the

following judgments:-

i. Vimal Suresh Kamble vs Chaluverapinake Apal S.P. & Anr.,

(2003) 3 SCC 175;

ii. Tameeezuddin @ Tammu vs. State (N.C.T of Delhi), (2009) 15

SCC 566;

iii. Narender Kumar vs. State (N.C.T of Delhi), (2012) 7 SCC

171; and

CRL.A. 1469/2010 Page 14 of 17

iv. Mukesh vs. State (N.C.T of Delhi), (2017) 6 SCC 1.

28. When the testimony of the victim is dug deep and appreciated by

juxtaposing it to the circumstances of the case, the normal human behaviour

and conduct in given situation reflected, in the testimony of the prosecutrix,

then credibility and trustworthiness of the prosecutrix becomes the biggest

casualty. If the statement of the prosecutrix recorded under Section 164

Cr.P.C. is looked into, albeit not a substantive statement but cannot be

ignored altogether, then it gives a clean chit to the Appellant as it was the

prosecturix, who after being scolded by her mother went to the Appellant. It

was she who, in a way, insisted, that the Appellant should take her away, the

Appellant has tried to reason with her by not resorting to elopement, but it

was the prosecutrix who stood her ground and kind of forced the Appellant

to take her to Himachal Pradesh. On reaching at the house of brother-in-law

of the Appellant, the brother-in-law had also condemned both of them for

their act of elopement. Statement of the prosecutrix under Section 164

Cr.P.C. further reflects that she got married to the Appellant in a temple and

certain photographs are there to that effect which are Ex.PW12/A (6

photographs).

29. The photographs no-where reveal that any act of force or pressure or

unwillingness on the part of prosecutrix from being there and participating in

the so called marriage ceremony which apparently was nothing but exchange

of garlands in the temple. Nevertheless, all this goes on to show that the

prosecutrix had an altogether different version before learned Metropolitan

Magistrate where she had herself voluntarily given her age as 19 years.

30. However, when she was examined before the Court, she shifted the

CRL.A. 1469/2010 Page 15 of 17

entire blame on the Appellant by saying that she was given some stupefying

substance in water, as a result of which she became unconscious and

regained her consciousness in Himachal Pradesh. The mode of transport

used to go to Himachal Pradesh was a public transport (bus). She stated that

she was in a way forced to marry the Appellant and on the intervening night

of 6

th

– 7

th

March, 2008, she was subjected to rape by the Appellant.

31. It is correct that the statement made before the Court during the trial is

the substantive statement / evidence, which is relevant for consideration.

However, statement made „On Oath‟ before a Magistrate cannot be

completely ignored either. It is the comprehensive justice which should be

the aim and object of the judicial process. The observations made by

Hon‟ble Supreme Court can be looked for guidance in P.Yuvaprakash v.

State of T.N., (2024) 17 SCC 684:-

“34. The prosecution did not even cross-examine this witness.

Having regard to these overall factors, the Court is of the opinion

that M's statement under Section 164CrPC contained a truthful

narration of the events. This, in other words, meant that there was no

penetrative sexual assault on her. Therefore, the provisions of the

Pocso Act will not be applicable in this case. The impugned

judgment set aside the charge under Section 366 IPC against the

appellant. The charges against him, under Section 6 of the Pocso Act

as well as Section 10 of the Prohibition of Child Marriage Act,

cannot be sustained; the findings of the courts below i.e. conviction

and sentences imposed are, therefore, set aside”.

Similarly, in State (GNCT of Delhi) vs. Vipin @ Lalla, CRL.A No.

94/2025 dated 07.01.2025, the Apex Court took into consideration the

statement made under Section 164 Cr.P.C.

32. An inference about the trustworthiness or reliability or vice versa can

be drawn from the fact that in her cross examination when she talks about

her age, she deposed that she had given her age as 19 years, before the

CRL.A. 1469/2010 Page 16 of 17

learned Magistrate at the time of her statement under Section 164 Cr.P.C.,

but immediately clarifies it by saying that she was under pressure from the

Appellant and his brother-in-law. The statement of the prosecutrix was

recorded on 15.03.2008 and at that time, the Appellant was in police custody

as his police custody remand was taken on 13.03.2008 for two days. As has

been deposed further by the Investigating Officer PW-4 ASI Ajay Tyagi that

on 15.03.2008 the Accused / Appellant was remanded to judicial custody.

Evidently, no access was available to the Appellant to reach to the

prosecutrix. In such circumstances, how the Appellant could have forced,

threatened or influenced the victim / prosecutrix to make a statement, as was

made by her. The presence of brother-in-law of the Appellant is not reflected

on record. In any case the prosecutrix was in “Nirmal Chaya” a women

shelter / home inaccessible to everyone.

33. The aforesaid facts and circumstances, renders the prosecutrix as an

„untrustworthy and unreliable witness‟. Her testimony is full of inherent

contradictions and improbable circumstances, therefore, the same cannot be

relied upon and certainly is not of sterling quality, as is the requirement of

law. There is no other witness on the material aspects. The corroborative

piece of evidence could have been the medical examination of the

prosecutrix where it has been opined by the doctor that her hymen was not

intact. However it has not been clarified as to whether it was a recent tear or

an old one. Thus the corroboration is also strictly not there. In the absence of

any cogent evidence, the doubt and suspicion is bound to crop up in the

version of the prosecution and that goes to the benefit of the Appellant.

34. In view of the aforesaid facts and circumstances, the Appellant cannot

be held responsible for the offence(s) for which he has been convicted i.e.

under section 363, 366 and 376 IPC.

CRL.A. 1469/2010 Page 17 of 17

35. As a result, the appeal is accepted and the same is allowed. The

Appellant be released forthwith, if not required in any other case. All the

pending application(s), if any, also stand disposed of.

36. Copy of this judgment be sent to Prison Authorities as well as to the

concerned trial court, for necessary compliance.

VIMAL KUMAR YADAV, J

APRIL 07, 2026/bj/tng