[Cites 15, Cited by 0]
Delhi High Court
Babu Yamin vs State on 5 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 02.02.2026
Judgment pronounced on:05 .02.2026
+ CRL.A. 397/2017
BABU YAMIN .....Appellant
Through: Ms. Monika Tripathy, Mr. Saksham
Singh and Mr. Gautam Yadav,
Advocates.
versus
STATE .....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) of the
Criminal Procedure Code, 1973, (the CrPC) the sole accused in SC
No. 153 of 2013 on the file of the Special Court under the
Protection of Children from Sexual Offences Act, 2012 (the
PoCSO Act), Patiala House Courts, New Delhi, assails the
conviction and the sentence imposed upon him for the offence
punishable under Section 10 of the PoCSO Act.
2. The prosecution case is that on 08.09.2013 at about
4:30 PM, the accused committed aggravated sexual assault on
PW4, a minor aged about 3 years, at RZ-224/6, Gali No. 4, J
Block, West Sagarapur, New Delhi by removing the victim's
under-garment and holding her tightly. Thus, as per the Charge
sheet/final report, the accused was alleged to have committed the
offences punishable under Sections 354, 354D IPC and Sections 8,
9 (m) read with section 10 of the PoCSO Act.
3. On the basis of Ext. PW3/A FIS of PW7, given on
08.09.2013, Crime no. 179/2013, Sagarpur Police station, that is,
Ext. PW7/B FIR was registered by PW7Assistant Sub-Inspector
(ASI). PW9 conducted investigation into the crime and on
completion of the same filed the charge-sheet/final report alleging
commission of offences punishable under the above mentioned
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 of Cr.PC. After hearing both sides,
the trial court as per order dated 31.10.2013, framed a Charge
under Sections9(m) and 10 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 9 were
examined and Exts. PW3/A-F, PW5/A, PW6/A, PW7/A-B,
PW8/A-C, PW9/A-B were marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313 CrPC regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He submitted that he had been falsely
implicated in this case as Ram Naresh (PW2, the paternal uncle of
PW4) and family wanted him to vacate his house and leave the
area as years back, he had married a widow, which was not
acceptable to the latter.
7. After questioning the accused under Section 313 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 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. No oral or documentary
evidence was adduced by the accused.
8. Upon consideration of the oral and documentary
evidence on record and after hearing both sides, the trial court,
vide the impugned judgment dated 31.03.2025 held the accused
guilty of the offence punishable under Section 10 of the PoCSO
Act and hence sentenced him to undergo rigorous imprisonment
for a period of 5 years and to fine of ₹ 10,000/-, and in default of
payment of fine, to undergo simple imprisonment for five months.
Aggrieved, the accused has preferred this present appeal.
9. It was submitted by the learned counsel for the
appellant/accused that the prosecution has misconceived the act of
the accused in holding PW4, the victim. It was submitted that PW4
was of tender age and incapable of comprehending things in the
correct perspective and so it would not be just and proper to decide
the case solely on her testimony, as there exists a strong possibility
that she may have been tutored due to the existing dispute between
PW2's family and the accused, who wanted the accused to vacate
the house he was occupying due to his affair and marriage to one
Nathi Devi.
10. Per Contra, it was submitted by the learned Additional
Public Prosecutor that the conviction and sentence do not suffer
from any infirmity warranting interference in the present appeal. It
was submitted that apart from an inconsistency in the testimony of
PW4, the victim, and PW3, her mother, with regard to the person
to whom the victim had first disclosed the incident, there are no
contradictions or inconsistencies of such nature as to affect the
prosecution case. The aforesaid discrepancy being minor, cannot
be put against the prosecution.
11. Heard both sides and perused the records.
12. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgment calling for an interference by this Court.
13. I shall first briefly refer to the evidence on record relied
on by the prosecution in support of the case. Exhibit PW3/A, the
FIS of PW3, the mother of the victim, was recorded on the very
same day of the incident, i.e., 08.09.2013. In the FIS, PW7 has
stated thus:- "...My elder brother-in-law, Sh. Ram Naresh, lives
with his family in the back part of the house No. RZ-224/6, Gali
No. 4, J-Block, West Sagarpur. My daughter Vanshika regularly
plays at his house and in the street with my brother-in-law's
children and other children. Today, at about 4:30 PM, my daughter
Vanshika went out to play and returned home crying after a while
at around 5:00 PM. She said, "Mommy, the old uncle living in the
back alley opened my underwear and held me tightly; I am in
pain".(" म ी पीछे वाली गली म रहने वाले बु ढे अं कल ने मे री क ी
खोली है और मु झे जोर से पकडा है मेरे हाई (दद) हो रही है ।") Upon
this, I went with my child to the back alley of our house, which is
the house of Nathi Devi at RZ-224/6, Gali No. 4, J-Block, West
Sagarpur. Pointing toward an old man present in that house named
Babu Yamin, my daughter stated that the old uncle had opened her
underwear. I immediately went to my brother-in-law's house and
informed him about this, and my brother-in-law called the police."
13.1. PW3 when examined before the trial court deposed that
on 08.09.2013 at around 5:30 PM, PW4 her daughter was playing
at the house of her brother-in-law (PW2) which is just behind her
house. After some time, her sister-in-law (PW1) told her that PW4
who went to her crying told her that accused had pulled down her
underwear. She along with her family members went to the house
of accused where they found accused lying in a completely
intoxicated condition and with his underwear open. PW3 further
deposed that PW4 pointed towards the accused and told her that
the said uncle had pulled down her underwear. When they
questioned the accused about this, he did not reply. Thereafter, her
husband rang up the police.
13.2. PW3 in her cross examination deposed that her
daughter had come home along with PW1 (badi mummy) and told
her about the incident, after which they had all gone to the house
of the accused where he was found alone in an intoxicated
condition.PW3 denied the suggestion that they had concocted a
false story about intoxication of the accused or lying in the house
with his underwear open or that the accused having pulled down
the underwear of PW4. PW3 further denied the suggestion that she
and her family wanted to purchase the house of accused, and hence
they got him falsely implicated in the case.
14. PW4 in her statement recorded under Section 164 CrPC
marked as Ext. PW3/F, in response to a question as to what the
accused did, stated that the latter had removed her underwear.
14.1. PW4 in her examination before the trial court, stood by
her case in Ext. PW3/F Section 164 statement. To a question as to
whether the accused had pulled down her underwear, she
responded in the affirmative by nodding her head. On being asked
what she was wearing at that time, she stated that she was wearing
a kameez. Further, she deposed that she had gone to the house of
PW1 after the incident and informed the latter about the accused
pulling down her underwear. During cross examination, PW4 was
asked whether she was telling the truth that the uncle had pulled
down her underwear, to which she responded in the affirmative by
nodding her head. When further asked whether she was stating so
at the instance of PW1, PW4 responded in the negative by nodding
her head.
15. PW1, the aunt of the victim, deposed that on the date of
the incident, PW4 informed her that the accused, who was residing
opposite their house, had removed her underwear. PW1 further
deposed that she conveyed the same to PW2, her husband and to
the parents of PW4. All of them went to the accused's residence
and found him in an intoxicated condition with his underwear
open. When confronted about the incident, the accused denied the
allegation, after which the police were informed.
15.1. PW1 in her cross examination deposed that PW3
informed the police regarding the incident and that the police
reached the spot by around 5 PM. She further deposed that Nathi
Devi also resides in the same house in which the accused occupies
one room and that the said house consists of two rooms and that
both of them have been living as husband and wife. PW1 further
stated that they have been residing in the said area for about eight
years and that the accused had been residing there even prior
thereto.PW1 denied the suggestion that the parents of PW4 wanted
to purchase the house of the accused and had falsely implicated
him in the present case to compel him to sell his house.
16. PW2, uncle of the victim, deposed that on 08.09.2013
at around 05:00 PM he was at his house along with his family
members and guests. At that time, PW4, his brother's daughter,
came to his house and informed PW1, his wife, that an uncle had
removed her underwear. According to PW2, when all of them
proceeded to the house of the accused they found a small boy
residing near the house of the accused, who upon inquiry told them
that the accused had pulled down PW4's underwear. They found
the accused in a completely intoxicated condition and with his
underwear open.
17. Sexual assault defined in Section 7 of the PoCSO Act
says that if any person, with sexual intent touches the vagina,
penis, anus or breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or any other person, or
does any other act with sexual intent which involves physical
contact without penetration is said to commit sexual assault.
18. The materials on record clearly indicate that the
accused removed the undergarment of the victim. Immediately
after the incident, the accused was also found to be in a state of
undress. This is spoken of by all the witnesses, whose testimony
have not been discredited in any way and so I find no reason(s) to
disbelieve them. The act of the accused in removing the
undergarment of the child makes his intention clear. The sexual
intent, which is a necessary ingredient to be established for making
out an offence under Section 7 of the PoCSO Act stands
substantiated.
19. It is also settled law that the sole testimony of a victim
can be relied upon to decide a case of sexual assault, provided it is
clear, trustworthy and reliable, as held in Ganesan v. State, (2020)
10 SCC 573. Hence, it would be wrong to contend otherwise or to
insist for corroboration. The defence put forth by the accused,
namely, that PW4's family wanted him to vacate the said house on
account of his relationship with Nathi Devi appears improbable.
Moreover, it is neither reasonable nor rational to suggest that a
minor child would be used as a tool in such a bizarre dispute.
Therefore, I do not find any reason(s) to reject or discard the
testimony of PW4 or the other prosecution witnesses. In such
circumstances, the finding of guilt of the accused by the trial court
for the offence punishable under Section 10 of the PoCSO Act
suffers from no infirmity calling for an interference by this Court
20. In the result, the appeal sans merit is dismissed.
Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 05, 2026
ABP
