[Cites 15, Cited by 0]
Delhi High Court
Rajesh vs State Of Delhi on 5 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 03.02.2026
Judgment pronounced on: 05.02.2026
+ CRL.A. 772/2016
RAJESH .....Appellant
Through: Mr. Avneesh Saranan and Ms. Anita
Saran, Advocates with appellant in
Person
versus
STATE OF DELHI .....Respondent
Through: Mr. Pradeep Gahlot, APP for the State
with SI Pinky, PS-Sultanpuri with
prosecutrix in person.
Mr. Tushar Rohmetra, Advocate for
victim
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, (the Cr.P.C.), the sole accused in SC
No. 118/2014 on the file of the Additional Sessions Judge-01,
North-West District, Rohini Courts, Delhi, assails the judgment
dated 30.04.2016 and the order on sentence dated 03.05.2016 as
per which he has been convicted and sentenced for the offences
punishable under Sections 363 and 366 of the Indian Penal Code,
1860 (the IPC) and Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that the appellant/accused about 8
to 9 months before 30.04.2014, kidnapped PW10, a minor aged 15
years from the lawful guardianship of her mother (PW11), took her
to the juggi of his mami, at P-1, Sultanpuri, Delhi, knowing that
she may be forced or seduced to illicit intercourse and thereafter
repeatedly committed aggravated penetrative sexual assault on her.
As per the chargesheet/ final report, the accused was alleged to
have committed the offences punishable under Section 363, 366,
376 IPC and Section 6 of the PoCSO Act.
3. On the basis of Exhibit PW10/A FIS of PW10, given on
01.05.2014, crime no. 484/2014, Sultan Puri Police Station, i.e.,
Exhibit PW4/A FIR was registered by PW4, Head Constable.
PW14, Woman Assistant Sub Inspector (WASI) was entrusted
with the investigation of the case. PW14 conducted investigation
into the crime and on completion of the same, filed the charge-
sheet/final report alleging commission of the offences punishable
under the aforementioned sections.
4. When the accused was produced before the trial court, all
the copies of the prosecution records were furnished to him, as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, vide order dated 03.07.2014, framed a charge under
Sections 363, 366, 376 of the IPC and Section 5(I) read with
Section 6 of the PoCSO Act, which was read over and explained to
the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 15 were examined
and Exhibits PW1/A-C, PW2/A-B, PW3/A-D, PW4/A-C, PW5/A,
PW7/A, PW8/A, PW10/A-E, PW12/B, PW13/A, PW14/A-E were
marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He claimed that he had been falsely
implicated at the instance of the parents of PW10.
7. After questioning the accused under Section. 313(1)(b)
CrPC, compliance of Section 232 CrPC was mandatory. In the
case on hand, no hearing as contemplated under Section 232 CrPC
is seen done by the trial court. However, non-compliance of the
said provision does not, ipso facto vitiate the proceedings, unless
omission to comply with the same is shown to have resulted in
serious and substantial prejudice to the accused (See Moidu K. vs.
State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker
2888). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C has caused any prejudice to him.
8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary evidence
on record, and after hearing both sides, the trial court, vide the
impugned judgement dated 30.04.2016 held the accused guilty of
the offences punishable under Sections 363 and 366 IPC and
Section 6 PoCSO Act. Vide order on sentence dated 03.05.2016,
sentenced him to undergo rigorous imprisonment for a period of 3
years each and to fine of ₹1,000/- each, and in default of payment
of fine, to simple imprisonment for a period of one month each for
the offences punishable under Sections 363 and 366 IPC, and to
rigorous imprisonment for a period of 10 years and to fine of
₹10,000/-, and in default of payment of fine, to simple
imprisonment for a period of six months for the offence punishable
under Section 6 PoCSO Act. The sentences have been directed to
run concurrently. Aggrieved, the accused has preferred this appeal.
10. It was submitted by the learned counsel for the appellant
that the impugned judgment suffers from grave mis-appreciation of
evidence, inasmuch as the trial court failed to consider the
categorical admissions of PW10 that the relationship between the
parties was consensual, arising out of a love affair known to both
families, and that the FIR came to be lodged in a state of anger
only because the appellant allegedly refused to marry her. It was
submitted that PW10 herself admitted that no force was ever used
by the appellant and that the trial court erred in overlooking these
material admissions while recording conviction.
10.1. It was further argued that the trial court committed a
serious error in convicting the appellant solely on the premise of
minority of PW10, without examining whether the essential
ingredients of Sections 363 and 366 IPC stood satisfied. The
learned counsel submitted that the evidence on record does not
establish kidnapping or inducement, nor does it prove that the
appellant compelled or forced PW10 into any act against her will.
It was urged that the medical evidence, which only notes an old
hymen tear without any external injury, does not corroborate the
allegation of penetrative sexual assault and cannot, by itself,
sustain a conviction under Section 6 of the PoCSO Act.
10.2. It was contended that the trial court ignored the
mitigating circumstances, including the subsequent marriage
between the appellant and PW10 and her own statement seeking
leniency, and imposed a disproportionately harsh sentence. On
these grounds, it was prayed that the impugned judgment of
conviction and order on sentence be set aside and the appellant be
acquitted.
11. The learned Additional Public Prosecutor supported the
impugned judgment and contended that the so-called consent of
PW10 is wholly immaterial in law, once her minority stands
established. It was submitted that the evidence on record
conclusively proves that PW10 was a child within the meaning of
the PoCSO Act on the date of occurrence, and therefore any
purported consent, willingness, or voluntary participation is of no
legal consequence. There is no infirmity in the impugned
judgement calling for an interference by this Court.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in the present
appeal is whether there is any infirmity in the impugned judgement
calling for an interference by this court.
14. I make a brief reference to the oral and documentary
evidence relied on by the prosecution in support of the case
Exhibit PW10/A, the FIS of PW10 reads thus:- She stated that the
accused, a resident of C-2 Jhuggi, Sultanpuri, had been known to
her for about one year and that he used to visit her house to meet
her. About 8 to 9 months prior to 01.05.2014, the accused had
taken her to the hut (jhuggi) of his maternal aunt (Mami) situated
in Sultanpuri, which was in the same locality, though she could not
recall the exact date. She further stated that at that time, the
younger son of the accused's maternal aunt was present there, to
whom the accused gave ₹5 and sent him to a shop. Thereafter, the
accused began professing his love for her and expressed his desire
to marry her, and started asking her to have physical relations with
him. She refused and informed him that she was a minor.
However, he repeatedly insisted that he loved her and would marry
her, and urged her to have relations with him. Saying this, he
committed a "wrong act" (galat kaam) against her will. She further
stated that on 29.04.2014, at about 2:00 PM during the day time,
the accused took her to Budh Vihar Phase-I, Delhi, near Sharma
Office, to the room of his maternal uncle (Mama) on the pretext of
taking her for a walk, where he again established physical relations
with her against her will.PW10 further stated that on 30.04.2014,
at around 2:30 PM, she had gone to Mangolpuri for her tailoring
classes, when the accuse came outside the tailoring centre and
started quarrelling with her. Meanwhile, PW11, the mother of
PW10 arrived there and informed the police. She further stated that
the accused had established physical relations with her on 2 to 3
occasions by giving her a false assurance of marriage and
requested that legal action be taken against him.
14.1. PW10 in Exhibit PW3/B Section164 statement has
stated that the accused is an acquaintance. His maternal aunt
resided near her house and he used to visit there, during which
they became friends. When she informed her family about the
relationship, they agreed to the marriage and told her that she
would be married to the accused on attaining the age of 18 years.
The father of the accused, however, was not agreeable to the
marriage and, thereafter, under pressure from his family members,
the accused also refused to marry her. She further stated that it was
she who expressed her desire to have physical relations with the
accused, to which he agreed. Both of them went to the house of the
accused's maternal uncle at Budh Vihar, where physical relations
took place at her request, with the intention of persuading him to
agree to the marriage. Prior thereto also, she and the accused had
physical relations on three to four occasions, and on each such
occasion, the relationship was consensual. On 30.04.2014, a
quarrel took place between her and the accused outside the
tailoring (silai) center, whereafter her tailoring teacher informed
her mother (PW11) over the telephone. Her mother, in a state of
anger, called the police and lodged the present case. PW10
categorically asserted that the accused was not at fault and
expressed that she did not want any punishment to be awarded to
him and sought his release.
14.2. PW10, when examined before the trial court, more or
less stands by her case in the FIS and in the Section164 statement.
15. PW11, the mother of PW10, deposed that the house of
the mami of the accused is situated near her residence and that the
accused used to frequently visit the said house. PW10, her
daughter, was in a relationship with the accused. When she scolded
her daughter for the same, both the accused and her daughter
expressed their desire to marry. Thereafter, she asked the accused
to arrange a meeting with his parents. Pursuant to this, she along
with her husband went to the house of the accused to discuss the
marriage. However, the father of the accused, refused to solemnize
the marriage of his son with her daughter. She further deposed that
her daughter used to go out with the accused on several occasions.
On 30.04.2014, she received a call from the silai center where her
daughter used to go. When she reached the center, she found her
daughter weeping. PW10 told her that the accused had quarreled
with her, assaulted her, and refused to marry her. PW10 also
informed her that the accused had established physical relations
with her on the pretext of marriage. PW10 insisted that she would
marry only the accused and no one else. Pursuant thereto, she
informed the police. Thereafter, the accused was arrested and
further proceedings were taken by the police.
16. As noticed earlier, the accused has been charged with the
offences punishable under Sections 363, 366 and 376 of the IPC
and under Section 5 read with Section 6 of the PoCSO Act.
Section 363 IPC deals with punishment for kidnapping. Section
361 IPC, which defines kidnapping from lawful guardianship, says
that whoever takes or entices any minor under sixteen years of age,
if a male, or under eighteen years of age, if a female, or any person
of unsound mind, out of the keeping of the lawful guardian of such
minor or person of unsound mind, without the consent of such
guardian, commits the offence of kidnapping from lawful
guardianship. The materials on record, as already referred to, do
not disclose any enticing of PW10 by the accused. On the contrary,
the materials indicate that she went along with the accused on her
own accord. Therefore, the essential ingredients of either taking or
enticing are not made out. Consequently, the trial court erred in
finding the accused guilty of the offence punishable under Section
363 IPC and in sentencing him thereunder.
17. Section 366 IPC deals with kidnapping, abducting or
inducing a woman to compel her marriage. It says that whoever
kidnaps or abducts any woman with the intent that she may be
compelled, or knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she may be
forced or seduced to illicit intercourse, or knowing it to be likely
that she will be forced or seduced to illicit intercourse, shall be
punished with imprisonment which may extend to ten years and
shall also be liable to fine. The second part of the section provides
that whoever, by means of criminal intimidation, abuse of
authority or any other method of compulsion, induces any woman
to go from any place with the intent that she may be, or knowing
that it is likely that she will be, forced or seduced to illicit
intercourse with another person, shall be punished.
18. As noticed earlier, there is no kidnapping or abduction
involved in the case on hand. There are also no materials to show
that PW10 was kidnapped or abducted with the intent to compel
her, or with the knowledge that it was likely that she would be
compelled, to marry any person against her will. For an offence
under Section 366 IPC to be made out, the woman must have been
kidnapped or abducted and the accused must have had the requisite
intent or knowledge as contemplated under the Section. The said
ingredients are not made out in the present case, as neither the FIS
nor the Section 164 statement nor the testimony of PW10 discloses
any element of kidnapping, abduction or compulsion to marry
against her will. There are also no materials to show that she was
forced or seduced to have illicit intercourse or that the accused had
knowledge that she would be so forced or seduced. Therefore, the
ingredients of Section 366 IPC are also not attracted. Hence, the
trial court erred in convicting and sentencing the accused for the
offence punishable under Section 366 IPC.
19. Now coming to the offence of rape as contemplated under
section 375 IPC or the offence of aggravated penetrative sexual
assault as contemplated under Section 5 of the PoCSO Act. The
prosecution relies on the sole testimony of PW10 who has given
inconsistent versions all throughout the proceedings. I have
already referred to in detail the FIS, the Section 164 statement and
her testimony in the box. In Exhibit PW3/B Section 164 statement,
she claims that it was at her instance the accused had sexual
intercourse with her. She has also stated that she did so in order to
make the accused agree to marry her. She also states that it was as
per her wish, the physical relationship had taken place. She has
also stated that on the date of the incident, i.e., 30.4.2014 there was
a quarrel between her and the accused. She informed her mother
and that her mother in anger had informed the police. She further
stated that the accused had not done any wrong to her. Therefore, it
appears from the statement of PW10 that she resorted to all these
tactics in order to compel the family of the accused to solemnize
their marriage. It is true that the sole testimony of the prosecutrix
is sufficient in an offence of such nature and corroboration is also
not required if the testimony of the victim is of sterling quality.
20. In the light of the statements and testimony of PW10,
wherein she stated that she had acted in the manner referred to in
order to compel the accused to marry her, it may not be safe to
conclude that the accused committed penetrative sexual assault
upon her. On a perusal of the impugned judgment and the order of
sentence, it is noticed that the trial court also observed that during
the pendency of the trial, PW10 had married the accused and
thereafter became pregnant through him. It is true that subsequent
marriage between the accused and the victim is not, by itself, a
ground to hold that the offence was not committed. However, in
the present case, the materials available on record in support of the
prosecution case consists solely of the testimony of PW10, which
suffers from material inconsistencies. There exists a possibility
that the complaint was lodged with the police in order to compel
the family of the accused to agree to the marriage. In such
circumstances, I find that the accused is entitled to the benefit of
doubt and consequent acquittal.
21. In the result, the appeal is allowed. The impugned
judgment by which the accused has been convicted and sentenced
for the offences punishable under Sections 363, 366 IPC and
Section 6 of the PoCSO Act is set aside. The accused is acquitted
under Section 235(1) Cr.P.C. of the offences punishable under
Sections 363, 366 IPC and Section 6 of the PoCSO Act. The
accused is set at liberty and his bail bond shall stand cancelled and
the sureties, if any, shall stand discharged.
22. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 05, 2026/RN/MJ
