CRL.A. 414/2021 Page 1 of 33

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 13.01.2026

Pronounced on: 27.02.2026

+ CRL.A. 414/2021 & CRL.M. (BAIL) 2407/2025

VIKAS ..... Appellant

Through: Mr.Ashwin Vaish, Mr.V

Thomas, Mr.Uttam Panwar,

Ms.Shubhi, Ms.Yashaswi

Dasari, Ms.Aaditya Sharma,

Advs.

versus

STATE & ANR. .....Respondents

Through: Mr.Aman Usman, APP with

Mr.Manvendra Yadav, Mr.Atiq

Ur Rehman, Advs. and SI

Rahul Rathi, PS Sangam Vihar.

Ms.Tara Narula, Ms.Shivangi

Sharma, Mr.Shivanjali

Bhalerao, Advs. for R-2.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

NAVIN CHAWLA, J.

1. The appellant has approached this Court by way of the present

appeal, assailing the Order dated 27.09.2021 passed by the learned

Additional Sessions Judge-04 (POCSO), South District, Saket Courts

CRL.A. 414/2021 Page 2 of 33

Complex, New Delhi (hereinafter referred to as the „Trial Court‟) in

Sessions Case No. 127/2019, titled State v. Vikas, arising out of FIR

No. 564/2018, registered at Police Station Sangam Vihar, Delhi, under

Sections 376AB and 342 of the Indian Penal Code, 1860 (hereinafter

referred to as the „IPC‟) and Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to as the

„POCSO Act‟), whereby the appellant has been convicted under

Section 6 of the POCSO Act and Section 376AB of the IPC, for

committing rape on a girl below 12 years of age, and Section 342 of

the IPC for wrongfully confining the victim „A‟ (name withheld as the

victim was a minor).

2. The appellant also challenges the order on sentence dated

09.12.2021, whereby the appellant has been sentenced to undergo

rigorous imprisonment for a period of 30 years (thirty years) for the

offence under Section 376AB of the IPC, and rigorous imprisonment

for a period of 01 year (one year) for the offence under Section 342 of

the IPC, with both the sentences directed to run concurrently. A fine

of Rs. 1,000/- has also been imposed under Section 342 of the IPC,

with simple imprisonment for 15 days in default of payment of fine; a

fine of Rs. 3,02,334.61/- (Rupees Three Lakh Two Thousand Three

Hundred Thirty-Four and Sixty-One Paise) under Section 376AB of

the IPC, with simple imprisonment for two months in default of

payment of fine; and a further fine of Rs. 3,334.61/- (Rupees Three

Thousand Three Hundred Thirty-Four and Sixty-One Paise) payable

to the State towards defraying the expenses incurred in the prosecution

has also been imposed on the appellant.

CRL.A. 414/2021 Page 3 of 33

FACTUAL BACKGROUND :

3. Briefly stated, it is the case of the prosecution that the child

victim, Ms. „A‟, along with her mother, Smt. „K‟ (name withheld to

conceal the identity of the child victim) and her father, arrived at the

police station on 24.12.2018 and disclosed an offence of „Aggravated

Penetrative Sexual Assault‟ committed upon the victim. Thereafter,

IO/W/SI Jitendra Negi (PW-5) recorded the statement/complaint of

the child victim. The child victim, along with her mother, was sent for

medical examination at the All India Institute of Medical Sciences.

After receiving the MLC of the victim, an endorsement was made on

the rukka, and the FIR was registered by the Duty Officer at

approximately 01:00 A.M. on 25.12.2018. The appellant came to the

police station along with his brother- Sh. Rakesh. The child victim

identified the appellant at the police station as 'Chhotu Bhaiya'. The

child victim also stated that he removed her pyjama after closing the

door and inserted his penis into her vagina. The appellant was arrested

on 25.12.2018. The disclosure statement of the appellant was

recorded. The medical examination/potency test of the appellant was

conducted. The exhibits from the appellant were collected and handed

over to IO/W/SI Jitendra Negi, who seized the same. The exhibits

were deposited in the malkhana. The victim's statement under Section

164 of the Code of Criminal Procedure, 1973 (hereinafter referred to

as the „Cr.P.C.‟) was recorded before the learned Metropolitan

Magistrate, South District, Saket Court Complex, Delhi, on

26.12.2018. The age-related documents of the victim were obtained

from her school, showing her date of birth as 08.08.2012.

CRL.A. 414/2021 Page 4 of 33

4. Upon completion of the investigation, a Chargesheet was filed

on 23/02/2019.

5. The learned Trial Court, vide Order dated 28.05.2019, framed

Charges under Sections 342/376AB of the IPC, read with Section 6,

read with Section 5 (m) of the POCSO Act, against the appellant, who

pleaded not guilty and claimed trial.

6. During the trial, the prosecution examined six witnesses. The

statement of the appellant under Section 294 of the Cr.P.C., regarding

admission and denial of documents, was recorded on 19.03.2021, and

thereafter, his statement under Section 313 of the Cr.P.C. was

recorded on 28.08.2021. The appellant led defence evidence and

examined one defence witness.

7. Upon conclusion of the trial, the learned Trial Court, vide Order

dated 27.09.2021, convicted the appellant and, vide order on sentence

dated 09.12.2021, imposed the sentences as noted above.

8. Aggrieved by his conviction and sentence, the appellant has

preferred the present appeal.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE

APPELLANT:

9. The learned counsel for the appellant submits that there was a

violation of Section 212 of the Cr.P.C., as the order framing the

charge itself is defective. He submits that the charge failed to specify

the exact place of the alleged offence, that is, the particular floor and

room of the building where the offence was allegedly committed. He

further submits that there is a discrepancy in the statement of the

CRL.A. 414/2021 Page 5 of 33

victim herself on the place of the offence, inasmuch as it was initially

claimed that the assault took place in the room of the appellant

situated on the ground floor, whereas later the version was changed to

the first floor, where the aunt of the victim (Chachi) resides. Placing

reliance on the judgment of Main Pal v. State of Haryana, (2010) 10

SCC 130; Kalicharan & Ors. v. State of U.P., (2023) 2 SCC 583, and

Bindersingh Nirmalsingh Kaili & Anr. v. State of Maharashtra,

1998 SCC OnLine Bom 205, he submits that the place of commission

of the offence must be specifically incorporated in the charge.

10. He submits that no scale site plan was prepared. The rough site

plan was prepared at the instance of the mother of the victim (PW-3),

instead of the victim herself. It is an admitted position that PW-3 was

not a witness to the alleged crime and, therefore, was incompetent to

point out the place of the alleged incident. In support of this

contention, reliance is placed on the judgments of the Supreme Court

in State of Madhya Pradesh v. Ghudan, (2003) 12 SCC 485, and of

the High Court of Madhya Pradesh in Vijay Singh v. State of MP,

2004 SCC OnLine MP 308.

11. He submits that while it is the case of the prosecution that the

alleged offence took place between 03.00 P.M. and 04.00 P.M., the

victim was produced for medical examination only at 09.45 P.M., that

is, after a considerable delay. The Rukka (Ex.PW-5/A) was recorded

on the statement of the witness only at 01.05 A.M., reflecting a further

delay. Although it is the case of the prosecution that the child, along

with her parents, had came to the police station at around 06.00 P.M.,

CRL.A. 414/2021 Page 6 of 33

no reason has been assigned for not recording the statement of the

victim at that time.

12. He further submits that PW-3 refused the medical examination

of the victim and, for the said reason, an adverse inference is liable to

be drawn against the prosecution. In support of this submission,

reliance is placed on The State of Himachal Pradesh v. Rajesh

Kumar @ Munnu, 2025 INSC 331.

13. He further submits that although the alleged offence is stated to

have taken place in the room of the aunt of the victim, the said aunt

was never examined by the prosecution nor summoned as a Court

witness by the learned Trial Court. According to the learned counsel

for the appellant, this lapse is fatal to the prosecution‟s case. In

support, he placed reliance on the judgments of the Supreme Court in

Gaurav Maini v. State of Haryana, 2024 SCC OnLine SC 1669, and

The State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261.

14. He submits that the testimony of the defence witness, namely

Sh.Rakesh Mohan (brother of the accused) examined as DW-1, was

also wrongly discarded by the learned Trial Court only on the ground

that he is the brother of the appellant. Placing reliance on the

judgments of the Supreme Court in Mano Dutt & Anr. v. State of

U.P., (2012) 4 SCC 79, and Kartik Malhar v. State of Bihar, (1996) 1

SCC 614, he submits that the testimony of a relative cannot be

discarded merely on the ground of being an interested witness. He

further submits that DW-1 had categorically stated that, at the time of

the alleged incident, the appellant had in fact gone to the residence of

his sister who lives nearby. DW-1 also stated that at the police station,

CRL.A. 414/2021 Page 7 of 33

the victim had pointed out the helper engaged by DW-1 in his

business, namely Chotu @ Rahul as the culprit, however, the police

wrongly implicated the appellant in the present case.

15. He further submits that during the trial, the appellant was also

denied a fair opportunity to defend himself, as the appellant was not

permitted to confront the victim (PW-1) with her prior statements. In

support of this submission, reliance is placed on the judgment of the

Supreme Court in Balveer Singh (supra).

16. Without prejudice to his above submission, the learned counsel

for the appellant submits that, as per the initial version of the victim,

the appellant had merely placed his penis on the vagina of the victim.

However, in her subsequent statement, she improved upon her version

by alleging penetration. Placing reliance on the judgments of this

Court in Ram Preet v. State, 2024:DHC:9936-DB; Raja Halder v.

State NCT of Delhi, 2024:DHC:10017, and Haldar Rajbhar v. State.

2025:DHC:10674, he submits that in the absence of any medical

corroboration and in view of the victim‟s initial statement, the

appellant, at best, could be convicted under Sections 7/8 or Sections

9(m)/10 of the POCSO Act, and not under Section 6 for aggravated

penetrative sexual assault.

17. On the question of sentence, the learned counsel for the

appellant submits that at the time of commission of the alleged

offence, the minimum punishment prescribed under Section 6 of the

POCSO Act was not less than 10 years, which was subsequently

enhanced to not less than 20 years. He submits that this subsequent

enhancement appears to have influenced the learned Trial Court in

CRL.A. 414/2021 Page 8 of 33

awarding a sentence of 30 years‟ imprisonment to the appellant.

Placing reliance on the judgments of this Court in Md. Murshid v.

State of NCT of Delhi, 2025:DHC:8509, Jahangir v. State (NCT of

Delhi), 2025:DHC:8268, and Rahul v. State (NCT of Delhi), 2025

SCC OnLine Del 6517, he submits that in similar factual

circumstances, this Court has awarded a sentence of only 10 years‟

imprisonment to the accused therein.

SUBMISSIONS OF THE LEARNED APP FOR THE STATE:

18. Mr.Aman Usman, the learned APP, submits that in the present

case, the prosecution‟s case has been fully proved from the statement

of the victim (PW-1) herself. He submits that the presence of the

appellant at the house, and the fact that he had come to the house only

a few days prior to the date of the incident, stand admitted. It is for

this reason that the victim did not know the name of the appellant. No

advantage can be given to the appellant for the same. He submits that

the story set up by the appellant that it was one Chotu @ Rahul, who

had been working with the brother of the appellant for more than four

years, who was involved in the offence, stand rebutted by the fact that

the victim (PW-1) would have known about him and would have

clearly identified him, rather than the appellant herein, as the

perpetrator of the crime.

19. He further submits that much emphasis has been sought to be

laid on whether the aunt (chachi) of the victim was present in her

room and what she was doing at the time of the offence. He submits

that the same is clearly irrelevant, as the victim has stated that the

CRL.A. 414/2021 Page 9 of 33

chachi was not in the room but was bathing. Merely because this fact

was not stated in her earlier statements, cannot be termed as an

improvement or inconsistency. Even otherwise, the case set up by the

appellant before the learned Trial Court was that there was some

enmity between the parents of the victim and the aunt. In fact, the aunt

was named as a witness by the appellant, but was later dropped.

Therefore, as admittedly the aunt had not seen the incident, she was

not considered important by the prosecution. If she was so important

for the appellant, it was for the appellant to have examined her to

show her presence in the room. He submits that, therefore, merely

because the aunt was not examined, it does not in any manner come to

the aid to the appellant.

20. He further submits that it was only in the statement of the

brother of the appellant (DW-1) that, for the first time, a vague plea of

alibi was sought to be introduced by stating that the appellant had

gone to the house of his sister on the day of the incident. Apart from

this vague statement, no other evidence was led by the appellant in

support of the said plea, including the examination of the so-called

sister. He submits that, on the other hand, the statement of DW-1 also

corroborates the version of the victim and her mother (PW-3) to a

large extent, particularly with regard to the appellant being

immediately confronted after the victim reported the incident to her

mother, as well as on various other aspects.

21. He submits that merely because the mother of the victim did not

wish the victim to suffer further on account of a medical examination,

and therefore refused the same, no adverse inference can be drawn

CRL.A. 414/2021 Page 10 of 33

against the prosecution, especially when the victim, a child, has

remained steadfast in her statement. He submits that this was a case

where all the ingredients for drawing the presumption under Sections

29 and 30 of the POCSO Act were made out.

22. He further submits that the mere denial by the learned Trial

Court of permission to the appellant to put aggressive questions to the

child victim, cannot be said to amount to a denial of a fair opportunity

of defence to the appellant. He submits that in terms of Section 33 of

the POCSO Act, the powers of the Special Court are wide, and in fact,

a duty is cast upon the Special Court to ensure that the victim is not

subjected to aggressive questioning or character assassination during

the trial.

23. He submits that a mere alleged discrepancy in the statement of

the victim regarding the exact location of the offence is also of no aid

to the appellant.

24. He further submits that the statement of the victim was

consistent on the fact that the appellant had touched her vagina with

his penis. From a child of such tender age, it cannot be expected that

she would fully narrate that the penis had also entered her vagina. In

fact, this clarification came from the victim herself while recording

her testimony before the Court, and the same cannot be doubted

merely because it was not stated with such clarity in her earlier

statement.

25. On the question of sentence, placing reliance on Section 42 of

the POCSO Act, he submits that the appellant was liable to be

sentenced under Sections 376AB of the IPC, which prescribes a more

CRL.A. 414/2021 Page 11 of 33

severe punishment, and therefore, keeping in view the entirety of the

evidence on record, the learned Trial Court has rightly imposed the

sentence upon the appellant.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE

VICTIM:

26. Ms.Tara Narula, the learned counsel for the victim, while

adopting the submissions of the learned APP, has further submitted

that the victim in the present case has remained steadfast on her

statement and, therefore, the conviction can be based on her sole

testimony. In support thereof, she placed reliance on the judgments of

the Supreme Court in B.C. Deva Alias Dyava v. State of Karnataka,

(2007) 12 SCC 122; Rajinder Alias Raju v. State of H.P., (2009) 16

SCC 69, and of this Court in Lokesh v. State, 2019 SCC OnLine Del

8917.

27. She submits that no benefit can be derived from minor

discrepancies in the statement of the victim. In support, she placed

reliance on the judgments of the Supreme Court in Shamim v. State

(Govt. of NCT of Delhi), (2018) 10 SCC 509; and Ganesan v. State

Represented by its Inspector of Police, (2020) 10 SCC 573, and of

this Court in Laxman v. State (Govt. of NCT of Delhi),

2020:DHC:3572.

28. She further supports the learned APP in submitting that this is a

fit case where the presumption of guilt under Section 29 of the

POCSO Act was liable to be drawn, and the same has not been

rebutted by the appellant. In support, she placed reliance on the

CRL.A. 414/2021 Page 12 of 33

judgment of the Supreme Court in Attorney General for India v.

Satish, (2022) 5 SCC 545.

29. On the question of there being no penetration, she placed

reliance on the judgments of the Supreme Court in Madan Gopal

Kakkad v. Naval Dubey & Anr., (1992) 3 SCC 204; and in State of

U.P. v. Babul Nath, (1994) 6 SCC 29, to submit that it is not

necessary that there should be complete penetration of the male organ,

as even partial or slight penetration is sufficient to constitute the

offence of rape. She submits that it is equally not necessary that the

victim must suffer injuries, as in the case of a child victim, it is quite

possible that no injury is sustained. In fact, placing reliance on

Parikh‟s textbook Medical Jurisprudence, Forensic Medicine and

Toxicology, she submits that in a young child, as the vagina is very

small and the hymen is deeply situated, therefore, penetration by an

adult penis may not be possible.

ANALYSIS AND FINDINGS:

30. We have considered the submissions made on behalf of the

appellant, the victim, and the State, and have perused the material

available on record.

31. The prime witness in the present case is the victim herself, who

was around 6 years old on the day of the incident. She was examined

as PW-1. She stated that the building in which she was residing

consisted of three floors. She stated that she, along with her parents

and brother, was residing on the first floor of the building. The aunt

(chachi) was residing separately in the middle room on the first floor

CRL.A. 414/2021 Page 13 of 33

of the building, while her friend „A‟, along with her brother „R‟, and

their parents, was residing on the ground floor of the building. She

states that on the day of the incident, after coming back from school,

she was playing with „A‟, when the appellant, whom she identified in

Court, called her to the room and sent „A‟ outside the room. He

thereafter bolted the room from inside and took off his pants and the

pyjama of PW-1. He made her sit on a sofa and then kissed her on the

lips. In the later part of her statement, she further stated that “after

putting off my pajama, “bhaiya ne apni susu wali jagah ko mere susu

wali jagah me dala” due to which I felt a little pain. “maine jab pucha

kya kar rahe ho to bhaiya ne kaha kuch nahi”. She stated that she

shouted for help by calling “Chachi-Chachi” but at that time she was

taking bath, and she might not have listened to her voice. She further

states that „A‟ knocked on the door, on which the appellant wore his

pants and put on her pyjama. As he opened the door, „A‟ fell down on

the floor. She immediately went upstairs. The appellant asked her to

come back, however, she went to her mother and informed her of the

happenings. Her mother called the appellant through her brother. The

appellant came up and the mother confronted him. Thereafter, PW-1,

along with her parents and the father of „A‟, and the appellant, went to

the police station, where they made a complaint. She was taken to the

hospital along with her mother and a woman constable for her medical

examination. The next day her statement was also recorded before the

Magistrate. Her mother showed the spot of the incident to the police.

CRL.A. 414/2021 Page 14 of 33

32. In her cross-examination, she states that the appellant used to

reside at some other place and had come to stay with the family of „A‟

on the morning of the day of the incident.

33. Ms. „K‟ (mother of the victim) was examined as PW-3. She

deposed that on December 24, 2018, at approximately 3:00-3:30 P.M.,

her daughter/ victim was playing with her friend „AR‟ on the staircase

of her aunt's (Chachi's) residence, which led to the first floor. The

staircase provided access to all floors of the building. Her family

resided on the second floor, 'AR' lived on the ground floor, and her

daughter's aunt lived on the first floor. She testified that her daughter

came to her and reported that while playing with 'AR', the uncle

(Chacha) of 'AR' came and told 'AR' to go to her ground floor room

and took victim 'A' by the hand to her aunt's room and latched the

door from inside. The appellant removed her underwear and pyjamas,

as well as his own pants, and then inserted his private part into hers.

The victim told him that she was in severe pain and asked him not to

do this. The appellant also kissed victim „A‟ on the lips. 'AR' came to

the room and repeatedly knocked on the door. The appellant opened it

after some time, and due to the force, 'AR' fell on the floor. The victim

left through the other side of the door and ran to PW-3. The appellant

followed her, asking her to come to him and not to go upstairs. The

victim was very frightened and told PW-3 of the happenings. PW-3

went to the house of the father of „AR‟ and asked who was residing

with him. She informed him that the said person, called Chotu, had

committed a „wrong act‟ (Galat Kaam) with her daughter and narrated

the incident. He called Chotu and confronted him, but the appellant

CRL.A. 414/2021 Page 15 of 33

denied everything. She then called her husband, and she along with

the victim went to the police station, while her husband reached there

from his office. She later came to know that the appellant was the

brother of the father of „AR‟.

34. She testified that at the police station, a female officer first

questioned her, and then called her daughter to inquire about the

incident. Victim „A‟ gave her statement, and both signed it. The police

then called the appellant to the police station. Initially, he remained

silent, then denied the allegations, however, the female officer later

informed her that the appellant had confessed after she left the room.

The police took her and victim „A‟ to AIIMS for medical examination,

however, she refused the internal/gynaecological examination of her

daughter to avoid causing her further pain and provided written refusal

as she did not want her to suffer more pain.

35. She states that the next day, she, victim „A‟, her husband, and a

female police officer went to the Court for recording statements under

Section 164 of the Cr.P.C. She also identified the appellant in court.

36. She admitted that she only occasionally used to speak to the

aunt of victim „A‟. She further stated that she had seen the appellant

playing with victim „A‟ on the staircase and came to know that he had

come to the ground floor. It is from this that she knew that the victim

was referring to the appellant as „Chotu Bhaiya‟. She admitted that she

had not noticed any injury on or near the vagina or any part of the

body of the victim, nor saw any blood. She denied the suggestion that

the boy „Rahul‟ was called as „Chotu‟ by the brother of the appellant

and his family.

CRL.A. 414/2021 Page 16 of 33

37. PW-1 and PW-3, in their testimony, are consistent and inspire

confidence. Though the learned counsel for the appellant has

strenuously urged that there were contradictions in the statement of

the victim (PW-1) recorded before the doctor at the time of her MLC

and the statement recorded under Section 164 of the Cr.P.C., when

compared with her statement before the learned Trial Court, we do not

find any such inconsistency that would make us doubt the veracity of

her statement. A child victim is not expected to narrate the incident

each time like a parrot. We must be mindful of the age of the victim

and the mental trauma she must have been undergoing when she was

taken to the hospital for her MLC and later to the Magistrate for

recording her statement under Section 164 of the Cr.P.C.

38. PW-3 (the mother) has also been consistent in her statements to

the police, before the learned Metropolitan Magistrate, and before the

learned Trial Court.

39. In contrast, the appellant, through DW-1, sought to set up a plea

of alibi by stating that the appellant had gone to his sister‟s house on

the day of the incident. Apart from the fact that the sister was not

examined as a witness, even otherwise, the said plea of alibi does not

inspire confidence. It is not that the statement of DW-1 is to be

ignored merely because he is a relative of the appellant; on the

contrary, the testimony of DW-1, to a large extent, corroborates the

statements of PW-1 and PW-3. DW-1 states that the mother of the

victim came to their house along with 'A' and stated, „Tumhare ladke

ne meri beti ke saath yeh kya kiya‟. She further stated, „woh ladka

floor par aaya tha aur meri beti ko galat bola tha‟. He further states

CRL.A. 414/2021 Page 17 of 33

that thereafter, the mother of the victim started threatening him and

stated that she would call the police. DW-1 replied that he himself was

ready to go to the police station and, accordingly, he went to the police

station along with his brother (the appellant) and Chotu @ Rahul. In

the meantime, „A‟, along with her mother „K‟, father, and brother, also

reached the police station. At the police station, after some

interrogation, the Investigating Officer told DW-1 and his help, Chotu

@ Rahul, to go home, while the appellant was asked to remain at the

police station. DW-1 accordingly left the police station. He admitted

that he did not make any complaint to any senior police officer or

inform any court alleging that the appellant was being falsely

implicated in the present case.

40. The above statement of DW-1 clearly corroborates the

testimony of the victim and her mother on vital aspects, including the

facts that an immediate allegation of the appellant being the person

who did something wrong with the victim being attributed to the

appellant, and that the appellant was taken to the police station, where

he was apprehended.

41. Though an attempt was made to raise a defence that the offence

had been committed by Chotu @ Rahul, a helper who had been

staying in the house of DW-1, the said defence stands falsified by the

admissions made by DW-1 himself. DW-1 stated that he had told the

mother of the victim that the offence could not have been committed

by the appellant, as the appellant had just returned from his sister‟s

house. If no accusation had been made against the appellant, there was

no reason for him to offer such an explanation to the mother, who had

CRL.A. 414/2021 Page 18 of 33

confronted him immediately after the incident. Further, there is no

explanation as to why DW-1 went to the police station along with the

appellant, or why the police detained the appellant and not Chotu @

Rahul?

42. The statement of the appellant was recorded under Section 313

of the Cr.P.C. on 28.08.2021. In his statement, the appellant admitted

that immediately after the incident, the brother of the victim came and

asked him to come to the victim‟s house. When he went there, the

mother of the victim told him that he had to go to the police station

and also slapped him. She then took the appellant to the house of DW-

1 (his brother), who also slapped him. When asked whether, at the

police station, the victim had identified him as “Chhotu Bhaiya”, he

stated that he did not remember. He further admitted that he was

thereafter arrested. The said statement, therefore, also corroborates the

testimony of the victim and her mother to a large extent.

43. Sections 29 and 30 of the POCSO Act are set out below:

“29. Presumption as to certain offences.

Where a person is prosecuted for committing

or abetting or attempting to commit any

offence under sections 3, 5, 7 and section 9 of

this Act, the Special Court shall presume, that

such person has committed or abetted or

attempted to commit the offence, as the case

may be unless the contrary is proved.

30. Presumption of culpable mental state.

(1) In any prosecution for any offence under

this Act which requires a culpable mental state

on the part of the appellant, the Special Court

shall presume the existence of such mental

state but it shall be a defence for the appellant

to prove the fact that he had no such mental

CRL.A. 414/2021 Page 19 of 33

state with respect to the act charged as an

offence in that prosecution.

(2) For the purposes of this section, a fact is

said to be proved only when the Special Court

believes it to exist beyond reasonable doubt

and not merely when its existence is

established by a preponderance of probability.

Explanation.– In this section, “culpable

mental state” includes intention, motive,

knowledge of a fact and the belief in, or reason

to believe, a fact.”

44. In light of the above provisions, the prosecution has established

the foundational facts, namely, that the victim was a minor, that she

gave a consistent account of sexual assault, and that such account

stands corroborated by the statements of the appellant as well as DW-

1, the statutory presumptions under Sections 29 and 30 of the POCSO

Act stand attracted. The burden, therefore, shifts upon the appellant to

rebut these presumptions. However, as will be discussed in the

subsequent portion of this judgment, the appellant has failed to do so.

45. The submission of the learned counsel for the appellant that

there was an inconsistency with respect to the place of the incident, is

ill-founded. Though the MLC report mentions that the alleged incident

took place at the house of the appellant, in her statement before the

learned Metropolitan Magistrate, the victim stated that the appellant

had taken her to the room of her aunt‟s son, and when he attempted to

commit the act, she cried out for her aunt. Even in the rough sketch of

the site plan, it is the room of the aunt that is shown as the place of

occurrence.

46. Coming to the alleged ambiguity in the Charge with regard to

the place of the offence, it has not been shown as to what prejudice, if

CRL.A. 414/2021 Page 20 of 33

any, was caused to the appellant during the trial on account of the

same. Section 215 of the Cr.P.C., which deals with errors or omissions

in a Charge, provides that such errors or omissions shall not vitiate the

trial, unless the accused is shown to have been misled by such error or

omission and unless it has occasioned a failure of justice. In the

present case, neither can the appellant be said to have been misled by

the omission to mention the exact location of the commission of the

crime, nor do we find that any failure of justice was occasioned by

such omission in the charge. We quote Section 215 of the Cr.P.C. as

under:-

“ 215. Effect of errors.— No error in stating

either the offence or the particulars required

to be stated in the charge, and no omission to

state the offence or those particulars, shall be

regarded at any stage of the case as material,

unless the accused was in fact misled by such

error or omission, and it has occasioned a

failure of justice.”

47. In Bindersing (supra), a case arising out of the NDPS Act, the

Charge was defective not only for not specifying the place of the

offence, but also for failing to mention the time when the raid was

carried out and the quantity of contraband seized.

48. In Main Pal (supra), the allegation against the accused was of

outraging the modesty of P, but the conviction was for outraging the

modesty of S. The prejudice to the accused was, therefore, writ large.

49. Similarly, in Kalicharan (supra), a charge of murdering the

deceased by firing bullets from a pistol was framed against A2,

however, it was found that the deceased had been murdered by A1,

A3, and A4 using sharp weapons. The Court held that, in the absence

CRL.A. 414/2021 Page 21 of 33

of such a Charge against them, and as the case was not put to them

under Section 313 of the Cr.P.C., their conviction could not be

sustained.

50. The cited cases, therefore, have no application to the facts of the

present case.

51. Similarly, the submission of the learned counsel for the

appellant that the site plan could not have been prepared at the

instance of the mother of the victim pointing out the place of

occurrence, or that no scaled plan was prepared, does not also appeal

to us. Once again, the appellant has been unable to demonstrate any

prejudice caused to him on account of the above. In Gaudhan (supra),

the question of the presence of light was vital to the case, and its

omission was found to be fatal to the prosecution. In Vijay Singh

(supra), the Court found serious discrepancies between the statement

of the witness and the site plan. These judgments, therefore, do not

come to the aid of the appellant.

52. As regards the submission of the learned counsel for the

appellant that an adverse inference ought to be drawn against the

prosecution since the mother of the victim had refused consent for the

internal medical examination of the child victim, we find no merit in

the said contention. PW-3 has herself explained that she did not wish

the victim to undergo further trauma by being subjected to such a

medical examination. This explanation does not appear to be unnatural

on the part of the mother. In any event, once the testimony of the

victim is found to be truthful and consistent, the mere refusal to permit

a medical examination cannot be fatal to the prosecution case.

CRL.A. 414/2021 Page 22 of 33

53. In B.C. Deva (supra), it has been held that even in the absence

of corroboration of medical evidence, the oral testimony of the victim,

if found to be cogent, reliable, convincing, and trustworthy, can be

safely relied upon. In Shamim (supra), the Supreme Court has held as

under:

“12. While appreciating the evidence of a

witness, the approach must be whether the

evidence of the witness read as a whole

inspires confidence. Once that impression is

formed, it is undoubtedly necessary for the

court to scrutinise the evidence more

particularly keeping in view the deficiencies,

drawbacks and infirmities pointed out in the

evidence as a whole and evaluate them to find

out whether it is against the general tenor of

the evidence and whether the earlier

evaluation of the evidence is shaken as to

render it unworthy of belief. Minor

discrepancies on trivial matters not touching

the core of the case, hypertechnical approach

by taking sentences torn out of context here or

there from the evidence, attaching importance

to some technical error without going to the

root of the matter would not ordinarily permit

rejection of the evidence as a whole. Minor

omissions in the police statements are never

considered to be fatal. The statements given by

the witnesses before the police are meant to be

brief statements and could not take place of

evidence in the court. Small/trivial omissions

would not justify a finding by court that the

witnesses concerned are liars. The prosecution

evidence may suffer from inconsistencies here

and discrepancies there, but that is a

shortcoming from which no criminal case is

free. The main thing to be seen is whether

those inconsistencies go to the root of the

matter or pertain to insignificant aspects

thereof. In the former case, the defence may be

justified in seeking advantage of incongruities

obtaining in the evidence. In the latter,

CRL.A. 414/2021 Page 23 of 33

however, no such benefit may be available to

it.”

54. In Balveer Singh (supra), the Supreme Court emphasised the

precautions to be followed while recording the testimony of a child

witness. It was further emphasised that if the child witness is not

found to have been tutored, his or her testimony can be relied upon

without insisting on further corroboration. We quote from the

judgment as under:

“58. We summarize our conclusion as under: -

(I) The Evidence Act does not prescribe any

minimum age for a witness, and as such a

child witness is a competent witness and his or

her evidence and cannot be rejected

outrightly.

(II) As per Section 118 of the Evidence Act,

before the evidence of the child witness is

recorded, a preliminary examination must be

conducted by the Trial Court to ascertain if the

child-witness is capable of understanding

sanctity of giving evidence and the import of

the questions that are being put to him.

(III) Before the evidence of the child witness is

recorded, the Trial Court must record its

opinion and satisfaction that the child witness

understands the duty of speaking the truth and

must clearly state why he is of such opinion.

(IV) The questions put to the child in the

course of the preliminary examination and the

demeanour of the child and their ability to

respond to questions coherently and rationally

must be recorded by the Trial Court. The

correctness of the opinion formed by the Trial

Court as to why it is satisfied that the child

witness was capable of giving evidence may be

gone into by the appellate court by either

scrutinizing the preliminary examination

conducted by the Trial Court, or from the

testimony of the child witness or the

CRL.A. 414/2021 Page 24 of 33

demeanour of the child during the deposition

and cross-examination as recorded by the

Trial Court.

(V) The testimony of a child witness who is

found to be competent to depose i.e., capable

of understanding the questions put to it and

able to give coherent and rational answers

would be admissible in evidence.

(VI) The Trial Court must also record the

demeanour of the child witness during the

course of its deposition and cross-examination

and whether the evidence of such child witness

is his voluntary expression and not borne out

of the influence of others.

(VII) There is no requirement or condition that

the evidence of a child witness must be

corroborated before it can be considered. A

child witness who exhibits the demeanour of

any other competent witness and whose

evidence inspires confidence can be relied

upon without any need for corroboration and

can form the sole basis for conviction. If the

evidence of the child explains the relevant

events of the crime without improvements or

embellishments, the same does not require any

corroboration whatsoever.

(VIII)Corroboration of the evidence of the

child witness may be insisted upon by the

courts as measure of caution and prudence

where the evidence of the child is found to be

either tutored or riddled with material

discrepancies or contradictions. There is no

hard and fast rule when such corroboration

would be desirous or required, and would

depend upon the peculiar facts and

circumstances of each case.

(IX) Child witnesses are considered as

dangerous witnesses as they are pliable and

liable to be influenced easily, shaped and

moulded and as such the courts must rule out

the possibility of tutoring. If the courts after a

careful scrutiny, find that there is neither any

CRL.A. 414/2021 Page 25 of 33

tutoring nor any attempt to use the child

witness for ulterior purposes by the

prosecution, then the courts must rely on the

confidence-inspiring testimony of such a

witness in determining the guilt or innocence

of the accused. In the absence of any

allegations by the accused in this regard, an

inference as to whether the child has been

tutored or not, can be drawn from the contents

of his deposition.

(X) The evidence of a child witness is

considered tutored if their testimony is shaped

or influenced at the instance of someone else

or is otherwise fabricated. Where there has

been any tutoring of a witness, the same may

possibly produce two broad effects in their

testimony; (i) improvisation or (ii) fabrication.

(i) Improvisation in testimony whereby

facts have been altered or new details

are added inconsistent with the version

of events not previously stated must be

eradicated by first confronting the

witness with that part of its previous

statement that omits or contradicts the

improvisation by bringing it to its notice

and giving the witness an opportunity to

either admit or deny the omission or

contradiction. If such omission or

contradiction is admitted there is no

further need to prove the contradiction.

If the witness denies the omission or

contradiction the same has to be proved

in the deposition of the investigating

officer by proving that part of police

statement of the witness in question.

Only thereafter, may the improvisation

be discarded from evidence or such

omission or contradiction be relied

upon as evidence in terms of Section 11

of Evidence Act.

(ii) Whereas the evidence of a child

witness which is alleged to be doctored

or tutored in toto, then such evidence

may be discarded as unreliable only if

CRL.A. 414/2021 Page 26 of 33

the presence of the following two factors

have to be established being as under: -

• Opportunity of Tutoring of the Child

Witness in question whereby certain

foundational facts suggesting or

demonstrating the probability that a

part of the testimony of the witness

might have been tutored have to be

established. This may be done either by

showing that there was a delay in

recording the statement of such witness

or that the presence of such witness was

doubtful, or by imputing any motive on

the part of such witness to depose

falsely, or the susceptibility of such

witness in falling prey to tutoring.

However, a mere bald assertion that

there is a possibility of the witness in

question being tutored is not sufficient.

• Reasonable likelihood of tutoring

wherein the foundational facts

suggesting a possibility of tutoring as

established have to be further proven or

cogently substantiated. This may be

done by leading evidence to prove a

strong and palpable motive to depose

falsely, or by establishing that the delay

in recording the statement is not only

unexplained but indicative and

suggestive of some unfair practice or by

proving that the witness fell prey to

tutoring and was influenced by someone

else either by cross-examining such

witness at length that leads to either

material discrepancies or

contradictions, or exposes a doubtful

demeanour of such witness rife with

sterile repetition and confidence lacking

testimony, or through such degree of

incompatibility of the version of the

witness with the other material on

record and attending circumstances that

negates their presence as unnatural.

CRL.A. 414/2021 Page 27 of 33

(XI) Merely because a child witness is found to

be repeating certain parts of what somebody

asked her to say is no reason to discard her

testimony as tutored, if it is found that what is

in substance being deposed by the child

witness is something that he or she had

actually witnessed. A child witness who has

withstood his or her cross-examination at

length and able to describe the scenario

implicating the accused in detail as the author

of crime, then minor discrepancies or parts of

coached deposition that have crept in will not

by itself affect the credibility of such child

witness.

(XII) Part of the statement of a child witness,

even if tutored, can be relied upon, if the

tutored part can be separated from the

untutored part, in case such remaining

untutored or untainted part inspires

confidence. The untutored part of the evidence

of the child witness can be believed and taken

into consideration or the purpose of

corroboration as in the case of a hostile

witness.”

55. On the plea of the learned counsel for the appellant that the

learned Trial Court did not permit the child witness to be confronted

with her previous statements, we must once again emphasise that no

prejudice has been caused to the appellant on account of the same. In

fact, such confrontation would have afforded the child witness an

opportunity to explain her statement. On the contrary, by not

permitting the child witness to be confronted with her previous

statements, the learned Trial Court denied her the opportunity to

explain any perceived discrepancy that may have existed between the

two statements. The learned Trial Court proceeded on the basis that

the child had either not stated or differently stated the facts in her

CRL.A. 414/2021 Page 28 of 33

previous statements. Therefore, the purpose of the appellant

confronting the victim with her previous statements was met. In this

regard, we must also be mindful of the mandate of Section 33(6) of

the POCSO Act, which casts a duty upon the Special Court to not

permit aggressive questioning or character assassination of the child

and to ensure that the dignity of the child is maintained at all times

during the trial.

56. The learned counsel for the appellant has also contended that

although the offence is alleged to have taken place between 3.00 P.M.

and 4.00 P.M., the medical examination of the victim was conducted

only at about 9.00 P.M., and the rukka was registered at 1.05 A.M. on

the following day. It has been submitted that there was an inordinate

delay, thereby suggesting a false implication of the appellant. We are

not impressed with the said submission. As noted hereinabove, the

victim and her mother have clearly explained the entire sequence of

events from the occurrence of the incident, the taking of the child to

the police station, thereafter to the hospital, and subsequently back to

the police station. The said sequence stands corroborated not only by

the testimony of DW-1, but also by the appellant‟s own statement, as

discussed hereinabove.

57. The submission of the learned counsel for the appellant that the

aunt was not examined as a witness, also does not impress us. As per

the prosecution, the said aunt neither witnessed the incident nor any

events immediately thereafter and, therefore, was not a material

witness for the prosecution. In fact, during the trial, the appellant

sought to suggest that he had been falsely implicated due to a dispute

CRL.A. 414/2021 Page 29 of 33

between the parents of the victim and the family of the aunt regarding

the tenancy of the appellant‟s brother. If that were so, it was

incumbent upon the appellant to produce the aunt as a witness.

Although she was named as one of the defence witnesses, she was

ultimately not examined. Any presumption, if at all, would therefore

operate against the appellant.

58. In Gaurav Maini (supra), the grandfather of the kidnapped boy,

who was the first person to disclose the incident to the police, had not

been examined. The Court held that it was an obligation of the Court

under Section 311 of the Cr.P.C. and Section 165 of the Indian

Evidence Act, 1872, to ensure that neither any extraneous material is

permitted to be brought on record nor any relevant fact is left out. As

noted above, in the present case, it was not the case of the prosecution

that the aunt had witnessed anything and, therefore, according to the

prosecution, she was not a crucial witness.

59. Now we come to the submission of the learned counsel for the

appellant that in the MLC of the victim, no injury was found on her

and that there was no bleeding, which, according to him, would have

indicated penetration. He has submitted that in her statement before

the learned Metropolitan Magistrate, the victim had stated that the

appellant had placed his penis on her vagina and had not stated that

there was penetration, and further, the clothes of the victim or of the

appellant were not seized by the police, which, according to the

learned counsel, would have shown whether penetration had in fact

taken place, thereby implying that no penetration had occurred. On the

basis of the above submissions, it has been argued that the appellant

CRL.A. 414/2021 Page 30 of 33

could not have been convicted under Section 6 of the POCSO Act for

„aggravated penetrative sexual assault‟ and that, at best, the offence

would fall under Section 7 of the POCSO Act, relating to „sexual

assault‟, or under Section 18 of the POCSO Act, relating to an

„attempt to commit aggravated penetrative sexual assault‟.

60. In her statement to the police (Ex.PW1/A), the victim had stated

that the appellant started putting his penis into her vagina. The

relevant extract is reproduced hereinbelow:

61. In her statement under Section 164 of the Cr.P.C. (Ex. PW1/C),

victim (PW-1) again stated as under:

CRL.A. 414/2021 Page 31 of 33

62. Similarly, in her statement before the Court, that PW-1 first

stated as follow:

“....Thereafter, he bolted the room from inside,

he took out his pant. He also took out my

Pajama. “Bhaiya ne mujhe sofe pe baithaya or

phir bhaiya ne mere lips pe data

lagaya”.....After some time my friend “A”

knocked the door, Bhaiya ne apna pant pehna

or mujhe bhi pajama pehnaya”....”

63. It is only in the later part of her testimony, that PW-1 further

stated as under:

“After putting off my pajama “bhaiya ne apni

susu wali jagah ko mere susu wali jagah me

dala” due to which I felt little pain.”

64. Though the learned counsel for the appellant submitted that the

above statements of the victim appeared to be in response to direct

questions put either by the Court or by the learned Prosecutor, no such

objection was recorded before the learned Trial Court. It appears that

CRL.A. 414/2021 Page 32 of 33

the victim, on her own, made the above statement upon recollecting

the incident during the course of recording of her testimony.

65. At the same time, the above three statements create a doubt as

to whether there was actual penetration in the present case. The

benefit of such doubt must necessarily go to the appellant. In the

absence of proof of penetration, and in view of the consistent

statements of the victim that the appellant had at least removed the

victim‟s pyjama and his own pant and placed his penis on the vagina

of the victim before the friend of the victim intervened by knocking on

the door, thereby preventing the appellant from completing the act, we

hold that the appellant is guilty of an attempt to commit aggravated

penetrative sexual assault and is, therefore, liable to be punished under

Section 18 of the POCSO Act. While there is no doubt that even the

slightest penetration of the penis into the vagina, without rupturing the

hymen, would constitute Aggravated Penetrative Sexual Assault,

however, from the above stray statement of the victim, we are unable

to conclude that there was a penetrative sexual assault upon the victim

in the present case. The judgment of Madan Gopal Kakkad (supra),

therefore, does not come to the assistance of the prosecution.

66. Accordingly, we set aside the conviction of the appellant under

Section 6 of the POCSO Act and under Section 376AB of the IPC,

and instead hold him guilty under Section 18 of the POCSO Act.

67. At the relevant time, the punishment prescribed for aggravated

penetrative sexual assault under Section 6 of the POCSO Act was

imprisonment for a term not less than ten years, which may extend to

imprisonment for life. Keeping in view the totality of circumstances,

CRL.A. 414/2021 Page 33 of 33

including the age of the victim, we reduce the sentence of the

appellant to ten years‟ rigorous imprisonment.

68. Insofar as the conviction of the appellant under Section 342 of

the IPC is concerned, the same is upheld, along with the sentence

imposed thereunder.

69. All sentences shall run concurrently.

70. In case the appellant had not undergone the aforesaid period of

sentence prior to the suspension of his sentence by this Court, the

appellant shall surrender on his own within two weeks from today to

undergo the remaining period of sentence. In the event of failure to

surrender within two weeks of the date of this judgment, appropriate

steps shall be taken by the State to ensure his arrest for undergoing the

remaining sentence.

71. The remaining directions of the learned Trial Court in the order

on sentence, that is, with respect to the fine amount and compensation

in terms of the Victim Compensation Scheme, are also sustained.

72. The present appeal is partly allowed in the above terms. All

pending applications, if any, are also disposed of having been

rendered infructuous.

73. A copy of this judgment be communicated to the learned Trial

Court and the concerned Jail Superintendent.

NAVIN CHAWLA, J.

RAVINDER DUDEJA , J.

FEBRUARY 27, 2026/Arya/DG