CRL.A. 1048/2017 Page 1 of 15

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on : 04.11.2025

Pronounced on : 02.02.2026

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+ CRL.A. 1048/2017

SUNIL .....Appellant

Through: Ms. Inderjeet Sidhu, Advocate.

versus

STATE .....Respondent

Through: Ms. Shubhi Gupta, APP for State with

SI Sanjay Meena.

Ms. Sanya Kumar, Advocate for

Victim.

Mr. Himanshu Anand Gupta, Mr.

Shekhar Anand Gupta, Ms. Mansi

Yadav, Ms. Shivani, and Ms. Navneet

Kaur, Advocates for DSLSA.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

1. By way of the present appeal, the appellant seeks to assail the

judgment of conviction dated 12.07.2017 and the order on sentence dated

05.08.2017 passed by the learned ASJ-SFTC (South East), Saket Courts,

Delhi in proceedings arising out of FIR No. 370/2010 registered under

Sections 366/376/323 IPC at P.S. Okhla Industrial Area.

Vide the impugned order on sentence, the appellant was sentenced to

undergo RI for a period of 4 years along with payment of fine of Rs.15,000/-

CRL.A. 1048/2017 Page 2 of 15

, in default whereof he would undergo SI for a period of 6 months, for the

offence punishable under Section 366 IPC; RI for a period of 7 years along

with payment of fine of Rs.20,000, in default whereof he would undergo SI

for 6 months, for the offence punishable under Section 376 IPC; and SI for a

period of 3 months along with payment of fine of Rs.1,000/-, in default

whereof he would undergo SI for 1 month, for the offence punishable under

Section 323 IPC. All the sentences were directed to run concurrently and the

benefit under Section 428 Cr.P.C. was granted to the appellant.

Out of the fine realized in view of the above sentence, an amount of

Rs.30,000/- was directed to be paid to the prosecutrix as compensation.

2. Pithily put, the case of the prosecution is that on 11.11.2010, the

father of the prosecutrix reported at the police station that his daughter, aged

about 15 years, had gone missing. She had been staying with her aunt in a

jhuggi and left the house on 03.11.2010 without informing anyone. The

complainant suspected that the appellant, who lived nearby and had vacated

his jhuggi on 02.11.2010, had kidnapped his daughter for the purpose of

marrying her. On this statement, the subject FIR was registered. On

26.11.2010, the prosecutrix was recovered from the house of the appellant in

Village Mani, District Aligarh, U.P. and was medically examined the

following day. In the absence of any birth proof, her bony age was

determined to be between 15 years 8 months and 16 years 4 months. In her

statement recorded under Section 164 Cr.P.C., she alleged that the appellant

forcibly took her away on the pretext of marriage, subjected her to physical

assault, and committed sexual assault upon her. The appellant, having

initially absconded, was declared a proclaimed offender on 17.07.2012, and

CRL.A. 1048/2017 Page 3 of 15

was subsequently arrested on 04.12.2015. Following a potency test, charges

were framed against the appellant for the offences punishable under Sections

366/376/323 IPC and Section 174-A IPC on 19.02.2016, to which he

pleaded not guilty and claimed trial.

3. The prosecution examined 15 witnesses in support of its case. The

prosecutrix herself was examined as PW-1. Her father, uncle, and aunt were

examined as PW-2, PW-3, and PW-14 respectively. Raghubir Singh and

Vijay Singh, examined as PW-5 and PW-7 respectively, are public persons

from village Dudupur, from where the prosecutrix was recovered. Dr.

Chithra (PW-6) proved the prosecutrix‟s MLC and Dr. Sanjeet Nayak (PW-

15) proved the prosecutrix‟s radiology report and deposed as to her bony

age. The I.O. of the case, SI S. S. Sandhu was examined as PW-11. The

remaining witnesses are police officials who deposed to various aspects of

the investigation.

4. Learned counsel for the appellant, while assailing the impugned

judgment, contended that the physical relations established between the

parties were consensual. He submitted that the prosecutrix's estimated bony

age range of 15 years 8 months to 16 years 4 months necessitates that the

appellant be given the benefit of the doubt and that the upper age limit of the

prosecutrix be treated as true, which the Trial Court failed to do. He

contended that, in light of the same, the prosecutrix ought to be considered

above the 16-year threshold for consent prescribed by the unamended

Section 375 IPC, as it existed at the time of the alleged incident in 2010.

Consequently, the alleged acts in question would not constitute the offence

of “rape” under the then-prevailing law. He further submitted that the non-

CRL.A. 1048/2017 Page 4 of 15

examination of the cousin of the prosecutrix, who, as per the prosecutrix‟s

own admission, accompanied her and the appellant to the appellant‟s village,

is fatal to the prosecution case. He contended that the present case is simply

one of a relationship gone sour.

5. The said contentions were opposed by the learned APP for the State

and the learned counsel appointed to represent the victim, who supported the

impugned judgment. Learned counsel for the victim contended that even if

the prosecutrix had accompanied the appellant to his village of her own

volition, such an act does not imply consent to the establishment of physical

relations. She further submitted that the age of the prosecutrix was not

disputed before the Trial Court.

6. The prosecutrix, examined as PW-1, deposed that about six years

prior, on the 9

th

day of the month, she arrived in Delhi to live at the house of

her mausi (maternal aunt). The appellant lived nearby and met her in the

street, proposing marriage. About 3 months after she had come to Delhi, the

appellant took her away under the assurance of marriage to Village

Dudupur, Bulandsehar, U.P. She lived in the appellant‟s house in his village

for about a month. She stated that during this period, he committed sexual

intercourse with her forcibly several times, beat and threatened her, and

forced her to perform all household chores. When she asked the appellant to

allow her to go meet her parents, he asked her to treat his parents as her

own. She stated that after about a month, her father and the police rescued

her, at which point the appellant escaped. She exhibited her MLC as Ex.

PW-1/A and her statement recorded under Section 164 Cr.P.C. as Ex. PW-

1/B.

CRL.A. 1048/2017 Page 5 of 15

During cross-examination, she stated that the mother and brother of

the appellant along with his family were also living in the house where she

was kept by the appellant. There were only two rooms in the house and the

entire family lived in the said two rooms. She had told the appellant‟s family

members about the beatings. She stated that the appellant never used to

commit sexual intercourse with her in front of his family members. She

further stated that she used to go outside the house alone to dispose of

buffalo dung but did not attempt to escape at any point. She initially denied

having left Delhi with the appellant of her own free will and volunteered that

the appellant had made her smell some intoxicating substance, but on being

confronted with her statement under Section 164 Cr.P.C., she stated it to be

correct that she had left the house of her mausi of her own free will. She

further admitted that her cousin „S‟, the daughter of her mausi, had also

accompanied her and the appellant to the appellant‟s village, but volunteered

that „S‟ had returned from there immediately, though she did not know how

„S‟ had come back home.

7. The father of the prosecutrix was examined as PW-2 and stated that

the prosecutrix had come to Delhi on 09.08.2010 to live with her mausi. He

stated that the prosecutrix went missing from that house without informing

anyone on 03.11.2010. During the subsequent search, they discovered that

the appellant, who lived nearby, had vacated his room the day before, on

02.11.2010. They grew suspicious about the appellant having a role in the

disappearance of the prosecutrix and he lodged a complaint with the police

on 11.11.2010. From the landlord of the appellant, he came to know about

the village of the appellant and the prosecutrix‟s presence there. On

CRL.A. 1048/2017 Page 6 of 15

26.11.2010, he accompanied the police to Village Dudupur, U.P., where he

found the prosecutrix cooking food in the house of the appellant. The

appellant fled upon seeing the police and the prosecutrix was brought back

to Delhi.

In cross-examination, he admitted that it was PW-3, the husband of

the prosecutrix‟s mausi, who informed him that the prosecutrix had gone

missing and at the same time told him that the appellant may have taken the

prosecutrix. He reached their house immediately and took the appellant‟s

phone number from his landlord. He spoke with the appellant on the same

day, and the appellant misbehaved with him over the phone. He stated that

there was a delay of 8 days in filing the complaint because they were

searching for the prosecutrix among relations. Suggestions were put to him

that he had deliberately not made a complaint to the police and that he had

come to know that the prosecutrix was with the appellant immediately after

her disappearance, but he denied the same. He admitted that his daughter's

cousin, „S‟, had also gone missing along with the prosecutrix. He stated that

neither did he tell the police about „S‟ being missing, nor did he inquire from

the father of „S‟ about her being missing. He stated that he had not

mentioned in his complaint that the appellant had taken his daughter away

with the intent to marry her, but he was confronted with his statement given

to the police wherein it was stated so.

8. The mausa (maternal uncle) of the prosecutrix was examined as PW-3

and corroborated that she came to live at their house on 09.08.2010. The

appellant was their neighbour. After approximately 3 months, the

prosecutrix went missing. During the search, they learned the appellant had

CRL.A. 1048/2017 Page 7 of 15

vacated his jhuggi the day prior to when the prosecutrix went missing. He

informed the prosecutrix's father, leading to registration of the subject FIR.

During cross-examination, he stated that the prosecutrix had left the

house around 12:00-12:30 PM without informing anyone. He stated that

they took the phone number of the appellant from his landlord on the same

day as when the prosecutrix went missing, but his number was switched off.

He further stated that the father of the prosecutrix had come to Delhi 3-4

days after the prosecutrix went missing.

9. The mausi (maternal aunt) of the prosecutrix was examined as PW-14

and similarly deposed that the prosecutrix had come from the village in 2010

to live with them, and that the appellant was their neighbour. The appellant

vacated his jhuggi first, and the prosecutrix went missing the next day. They

suspected the appellant and informed the police.

During cross-examination, she admitted that her daughter „S‟ and the

prosecutrix were the same age and both went missing from her house on the

same day. She stated that since her daughter was found on the road, she did

not report her daughter as missing to the police. She further stated that they

went to the police after they had exhausted their efforts to trace out the

prosecutrix, and that she informed the father of the prosecutrix on the next

day. She came to know about the appellant having vacated his jhuggi one

day after the prosecutrix went missing, when she directly approached the

appellant‟s landlord.

10. Raghubir Singh and Vijay Singh, examined as PW-5 and PW-7

respectively, are public persons from village Dudupur, from where the

prosecutrix was recovered. They are cited as witnesses in the memo

CRL.A. 1048/2017 Page 8 of 15

detailing the recovery of the prosecutrix (Ex. PW-5/A) and their signatures

appear on the same. PW-5/Raghubir Singh stated that he was in the village

when the police came, they told him that they had recovered a girl from the

village, but no girl was with them at the time he interacted with them. In

cross-examination by the learned APP for the State, he denied that the police

had recovered the prosecutrix from the appellant‟s house in his presence. He

further denied or that the recovered girl had told him that the appellant had

enticed her for the purpose of marriage and forced her to do housework. He,

however, admitted his signature on the concerned recovery memo. PW-

7/Vijay Singh stated that he was not present in the village, did not know

anything about the present case, and had not given any statement to the

police. In cross-examination by the learned APP for the State, he denied

having joined the investigation along with the I.O. and denied that the

prosecutrix was recovered from the appellant‟s house while he was present.

He, too, denied having stated to the police that the prosecutrix had told in his

presence that the appellant had enticed and brought her to the village, and

then ultimately forced her to do housework. He admitted his signature on the

concerned recovery memo.

11. The two medical witnesses examined were Dr. Chithra (PW-6) and

Dr. Sanjeet Nayak (PW-15). PW-6 proved the MLC of the prosecutrix and

deposed that no external injury marks were found on the prosecutrix‟s

person. She stated that the hymen of the prosecutrix was found torn, but that

there was no fresh tear. PW-15 proved the prosecutrix‟s radiology report and

deposed that as per the report, the bony age of the prosecutrix was between

15.8 and 16.4 years.

CRL.A. 1048/2017 Page 9 of 15

12. I have heard the learned counsels for the parties and carefully

examined the record.

13. It is imperative that the contentions regarding the age of the

prosecutrix be dealt with at the outset. It is the admitted case of the

prosecution that the alleged incident occurred between 03.11.2010, when the

prosecutrix left her aunt's house, and 26.11.2010, when she was recovered

from the village of the appellant. No documents proving the prosecutrix‟s

date of birth were available, in view of which a bone ossification test was

conducted on 27.11.2010. The radiology report from the same has been

exhibited as Ex. PW-11/F. A perusal of the same, as well as the testimony of

Dr. Sanjeet Nayak (PW-15), shows that the prosecutrix's bony age was

estimated to be between 15 years and 8 months to 16 years and 4 months.

14. The Supreme Court has held in Jaya Mala Vs. Home Secretary, Govt.

of Jammu & Kashmir & Ors.

1

that the margin of error in age ascertained by

radiological examination is two years on either side. This principle was

further reaffirmed in Rajak Mohammad Vs. State of Himachal Pradesh

2

,

wherein, while seized of a dispute where the prosecution had failed to

conclusively prove the minority of the prosecutrix through school records

and the radiological examination had estimated her age to be between 17

and 18 years, the Apex Court held that radiological age determination is not

precise and extended the benefit of doubt to the appellant who had been

convicted for the offence punishable under Section 376 IPC.

15. A Division Bench of this Court in Court on its Own Motion Vs. State

1

(1982) 2 SCC 538

2

(2018) 9 SCC 248

CRL.A. 1048/2017 Page 10 of 15

of NCT of Delhi

3

has conclusively held that where the age of the prosecutrix

is determined based on a bone age ossification report, the benefit of doubt

must be given to the accused and the upper age limit given in the reference

range shall be considered as the age of the prosecutrix.

16. Applying the law as expounded above to the facts of the present case,

since the radiology report provides an estimated age range of 15 years and 8

months to 16 years and 4 months, the upper extremity of the range must be

considered as true. Consequently, the prosecutrix is deemed to have been

over the age of 16 years at the time of the incident.

17. Now, it is pertinent to note that at the time of the incident in question,

the Criminal Law (Amendment) Act, 2013

4

had not been brought into force.

Article 20(1) of the Constitution mandates that no person shall be convicted

of any offence except for violation of a law in force at the time of the

commission of the act charged as an offence. This necessitates that the

relevant statutory provisions, as they existed at the material time, be

examined. The provision defining the offence of “rape”, i.e., Section 375

IPC, as it stood then, is extracted below:-

“375. Rape.—A man is said to commit “rape” who, except in the

case hereinafter excepted, has sexual intercourse with a woman under

circumstances falling under any of the six following descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained

by putting her or any person in whom she is interested in fear of death or

of hurt.

Fourthly.—With her consent, when the man knows that he is not

her husband, and that her consent is given because she believes that he is

another man to whom she is or believes herself to be lawfully married.

3

2024 SCC OnLine Del 4484

4

Act 13 of 2013

CRL.A. 1048/2017 Page 11 of 15

Fifthly.—With her consent, when, at the time of giving such

consent, by reason of unsoundness of mind or intoxication or the

administration by him personally or through another of any stupefying or

unwholesome substance, she is unable to understand the nature and

consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under sixteen

years of age.

Explanation.—Penetration is sufficient to constitute the sexual

intercourse necessary to the offence of rape.

Exception.—Sexual intercourse by a man with his own wife, the

wife not being under fifteen years of age, is not rape.”

(emphasis supplied)

18. A plain reading of the provision as it stood then makes it clear that the

statutory age of consent at the time relevant to the facts of the present case

was 16 years. Consequently, if a woman had attained the age of 16, her

voluntary participation in sexual relations would not attract the offence of

“rape” under Section 375 IPC (Ref: K. P. Thimmappa Gowda Vs. State of

Karnataka

5

). Having determined that the upper extremity of the age range of

the prosecutrix as provided by the radiological assessment must be treated as

true, the prosecutrix must be treated as being over the age of 16 years at the

relevant time.

19. Coming to the testimony of the prosecutrix, it is worth mentioning at

the outset that the prosecutrix initially disappeared from the house of her

aunt on 03.11.2010 and was recovered from the appellant‟s house in his

village on 26.11.2010, i.e., nearly a month after her initial disappearance. In

her cross-examination, she stated that the appellant‟s family members,

including the appellant‟s mother, resided along with them in the same two-

room house where she was allegedly kept by the appellant. She has further

5

(2011) 14 SCC 475

CRL.A. 1048/2017 Page 12 of 15

stated that she used to go outside the house alone to dispose of buffalo dung,

but she never attempted to run away or inform anyone else in the village that

she was being kept at the appellant‟s house against her will. Further, she

initially stated that she had not left Delhi of her own free will, and even put

forth an entirely new version of the appellant having made her smell some

intoxicating substance; however, on being confronted with her statement

under Section 164 Cr.P.C., she admitted that she had left her mausi‟s house

of her own free will.

20. The facts that have come on record indicate that the family members

of the prosecutrix were aware that she was with the appellant. It has come

out in the testimony of the prosecutrix‟s father (PW-2) as well as in the

testimony of her aunt (PW-14) that they grew suspicious of the appellant

having a role to play in the disappearance of the prosecutrix on coming to

know that he had vacated his room one day prior to the prosecutrix‟s

disappearance. PW-2 has further deposed that he came to know of the

appellant‟s village and the prosecutrix‟s presence there after speaking to the

appellant‟s landlord, and that PW-3 had informed him that the appellant may

have taken the prosecutrix, which has been corroborated by PW-3. PW-2

even spoke to the appellant over the phone after obtaining his number from

the landlord. Notably, PW-2 as well as PW-14 have both also admitted in

their respective Court depositions that the prosecutrix and her cousin „S‟ had

gone missing at the same time.

21. Another key aspect which lends itself to consideration is that „S‟ was

not examined by the prosecution despite it having come out in the testimony

of the prosecutrix (PW-1) that „S‟ had accompanied her and the appellant to

CRL.A. 1048/2017 Page 13 of 15

the appellant‟s village. The prosecutrix initially stated in her Court

deposition that the appellant had taken her till the main road leading to his

village by bus and then to his village on a motorcycle; however, she later

added during cross-examination that her cousin „S‟ had also accompanied

the two of them. She had volunteered that „S‟ returned from the appellant‟s

village immediately, though the prosecutrix could not offer any explanation

as to how „S‟ had returned home.

22. It is then unfathomable as to why, if the family members had come to

know about the appellant having taken away the prosecutrix and with the

knowledge that „S‟ had also gone missing on the same day, there was such a

delay in lodging the complaint. It is not clear why the family members did

not immediately lodge a police complaint and/or go to the native place of the

appellant, especially as the information regarding the village was available

with the landlord. Their initial suspicions would have been reaffirmed by

„S‟, who, as per the testimony of PW-14, was recovered from the road

shortly after going missing, making the eight-day delay in filing the

complaint even more inexplicable. Further, „S‟ was fully aware of the

prosecutrix having gone with the appellant, as well as about the appellant‟s

village.

23. Though the prosecution has claimed that the prosecutrix was

recovered from the appellant‟s house in his village in the presence of two

witnesses, namely Raghubir Singh and Vijay Singh, the said fact stands

denied not only by the prosecutrix who stated that public persons did not

gather at the spot when her father and the police reached the appellant‟s

house, but also by the two aforesaid witnesses themselves, who were

CRL.A. 1048/2017 Page 14 of 15

examined as PW-5 and PW-7 respectively. Both witnesses have

categorically denied having even seen the prosecutrix, let alone having

witnessed her recovery from the house of the appellant. This casts a shadow

of doubt over even the recovery of the prosecutrix.

24. Further, there are various inconsistencies in the testimonies of key

witnesses, especially qua the events leading up to the registration of the

subject FIR, such as when the father of the prosecutrix was informed about

her disappearance and at what stage the police was contacted and by whom.

These inconsistencies further weaken the prosecution case.

25. A perusal of the MLC of the prosecutrix and the testimony of Dr.

Chithra (PW-6) shows that no external injury marks were observed on the

prosecutrix‟s person. The medical evidence on record, therefore, does not

support the prosecution version of the appellant giving beatings to the

prosecutrix.

26. Furthermore, as stated before, the prosecutrix herself admitted that

she left her aunt‟s house of her own free will. She remained in the village of

the appellant for nearly a month. By her own admission, she was not

confined to a room and was free to go outside the house alone to dispose of

the buffalo dung. It is further apparent from the record that there were other

villagers around; yet, despite this freedom of movement and the presence of

other persons in the vicinity, she never attempted to run away or inform

anyone that she was being kept at the appellant‟s house against her will or

that the offence of rape was being committed upon her by the appellant.

27. On an overall conspectus of the facts and evidence that have come on

record, this Court is of the considered view that the prosecution has failed to

CRL.A. 1048/2017 Page 15 of 15

prove the essential ingredients of the offences for which the appellant has

been convicted. The benefit of the doubt, in the facts and circumstances of

the present case, must go to the appellant.

28. Accordingly, the present appeal is allowed, and the appellant is

acquitted of all charges.

29. The personal bond furnished by the appellant stands cancelled and his

surety is discharged.

30. A copy of this judgment be communicated to the Trial Court as well

as the Jail Superintendent concerned.

MANOJ KUMAR OHRI

(JUDGE)

FEBRUARY 02, 2026

nb