[Cites 21, Cited by 0]
Delhi High Court
Kajal vs State Nct Of Delhi on 19 January, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 12.01.2026
Judgment pronounced on: 19.01.2026
+ CRL.A. 133/2021 & CRL.M.(BAIL) 663/2024
KAJAL .....Appellant
Through: Mr. Ajay Verma, Ms. Smriti S. Nair
and Ms. Sneha Sejwal, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State.
SI Raghuraj Singh P.S.Sangam Vihar.
Mr. Anuj P. Agarwala, Advocate
(Amicus Curiae) with Mr. Vipul
Singh, Advocate for Victim.
+ CRL.A. 141/2021
GANGA SINGH .....Appellant
Through: Mr. B. Badrinath (DHCLSC) with
Mr. Dhruv Bhardwaj, Advocate.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State.
SI Raghuraj Singh P.S. Sangam Vihar
Mr. Anuj P. Agarwala, Advocate
(Amicus Curiae) with Mr. Vipul
Signature Not Verified CRL.A. 133/2021and connected matters Page 1 of 30
Signed By:KOMAL
DHAWAN
Signing Date:20.01.2026
16:16:55
Singh, Advocate for Victim.
+ CRL.A. 167/2021
PUMPY GUTPA .....Appellant
Through: Mr. Ajay Verma, Ms. Smriti S. Nair
and Ms. Sneha Sejwal, Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State.
SI Raghuraj Singh, P.S.Sangam Vihar
Mr. Anuj P. Agarwala, Advocate
(Amicus Curiae) with Mr. Vipul
Singh, Advocate for Victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In these appeals filed under 374(2) of the Code of
Criminal Procedure, 1973, the appellants/accused in SC No. 6605
of 2016 on the file of the Additional Sessions Judge-04 (Protection
of Children from Sexual Offences Act, 2012), South District, Saket
Courts, Delhi, assail the judgment dated 28.11.2020. By the said
judgment, accused no. 1 has been convicted and sentenced for the
offence punishable under Section 370 of the Indian Penal Code,
1860 (the IPC). Accused no. 2 has been convicted and sentenced
for the offences punishable under Sections 323 and 370 IPC, and
accused no. 3 has been convicted and sentenced for the offences
punishable under Sections 376(2)(i), 323, 370A IPC and Section 6
of the Protection of Children from Sexual Offences Act, 2012 (the
PoCSO Act).
2. The prosecution case is that on 13.08.2013, PW-1 aged
about 14 years was kidnapped from village Naamkhana, District
South 24, Pargana, West Bengal by Dalip, (absconding) along with
accused no.1 and accused no. 2 (A-1 and A-2) in furtherance of
their common intention for the purpose of trafficking and
thereafter she was wrongfully confined by Dalip, A-1 and A-2 in
the house of the latter, where she was beaten up and thereafter sold
to accused no. 3 (A-3). PW-1 was then forcibly married off to A-3,
who thereafter repeatedly raped her. PW-1 was beaten up
whenever she resisted. Hence, the accused persons are alleged to
have committed the offences punishable under Sections 323, 346,
354A, 363, 366, 370, 370A, 376 read with Section 34 IPC as well
as Section 6 of the PoCSO Act.
3. Based on Exhibit PW-3/B FIS of PW-1, crime no.39/2014
Sangam Vihar Police Station, that is, Exhibit PW-3/A FIR, was
registered by PW-19, Woman Sub Inspector (WSI). PW-19
conducted investigation into the crime and on completion of the
same, submitted the chargesheet/final report before the Court on
07.02.2014, alleging the commission of the offences punishable
under the aforementioned Sections.
4. When the accused persons were produced before the trial
court, all the copies of the prosecution records were furnished to
them as contemplated under Section 207 Cr.PC. After hearing both
sides, the trial court as per order dated 02.06.2014, framed a
charge under Sections 323, 346, 366, 370, 370A, 354A IPC against
A-1 and A-2, and under Sections 323, 346, 366, 370, 370A, 354A
and 376 IPC and Section 6 of the PoCSO Act against A- 3, which
was read over and explained to the accused persons, to which they
pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 19 were examined
and Exts. PW3/A-B, PW4/A-B, PW4/D, PW4/F, PW6/A, PW7/A,
PW10/A-B, PW11/A, PW 12/A, PW14/A, PW15/DX, PW17/A-B,
PW18/A-B, PW19/A-I and Mark C-R were marked in support of
the case.
6. After the close of the prosecution evidence, the accused
persons were questioned that Section 313 of the Code of Criminal
Procedure, 1973 (the Cr.P.C.) regarding the incriminating
circumstances appearing against them in the evidence of the
prosecution. The accused persons denied all those circumstances
and maintained their innocence. A-1 submitted that he does not
know PW-1 or A-3. Dalip (absconding accused) is an
acquaintance, as both of them are auto-rickshaw drivers and they
used to park their autos at the same place. One day, Dalip invited
him and his wife to attend the marriage of the former's sister at
Kalkaji Mandir. They attended the wedding. Thereafter, he has
only seen Dalip's sister once in the Court.
6.1. A-2, the wife of A-1, submitted that Dalip, an
acquaintance of her husband, came to her house to invite them to
the former's sister's wedding at Kalkaji Mandir. She has never
seen his sister thereafter.
6.2. A-3 submitted that A-1 was known to him and that the
former had asked him to marry PW-1. Thereafter, he got well
acquainted with PW-1 ("meri aur Victim 'M' ki acchi jaan
pehchan hogayi"). PW-1 was 18 years old. He took permission
from PW-1's mother to marry the latter and thereafter married her
at Kalkaji Mandir. Later on, A-1 told him that Dalip was PW-1's
boyfriend. He also saw a letter written in Bengali in the possession
of PW-1. He does not know Bengali and so he asked someone else
to read it for him. He was told that the letter had been written by
Dalip to PW-1 asking her to elope after taking her jewellery. As
PW-1 was living with him as his wife, he did have physical
relations with her.
7. After questioning the accused persons under Section 313
Cr.P.C, compliance of Section 232 Cr.P.C was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C is seen made 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 persons have no case that non-
compliance of Section 232 Cr.P.C has caused any prejudice to
him.
8. DW-1 was examined on behalf of A-1 and A-2.
9. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court vide the impugned
judgment dated 28.11.2023, held A-1 guilty of the offence
punishable under Sections 370 and 323 IPC; A-2 of the offence
punishable under Section 370 IPC and A-3 of the offences
punishable under Sections 376(2)(i), 323, 370A IPC and Section 6
of the PoCSO Act. Accordingly, A-1 has been sentenced to
rigorous imprisonment for 15 years as well as fine for the offence
punishable under Section 370 IPC and six months' rigorous
imprisonment and fine under Section 323 IPC. A-2 has been
sentenced to rigorous imprisonment for 18 years and fine for the
offence punishable under Section 370 IPC. A-3 has been sentenced
to rigorous imprisonment for 20 years and fine for the offence
punishable under Section 6 of the PoCSO Act; rigorous
imprisonment for 6 years and fine for the offence punishable under
Section 370A IPC and rigorous imprisonment for 6 months and
fine for the offence punishable under Section 323 IPC. The
sentences have been directed to run concurrently. Aggrieved, the
accused persons have preferred these appeals.
10. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
appellants/accused persons by the trial court are sustainable or not.
11. It was submitted by the learned counsel for A-1 that the
prosecution has been unable to establish any of the ingredients of
Section 370 IPC against him. No site plan or mahazar has been
prepared relating to the house/room in which A-1 is alleged to
have harboured PW-1. According to PW-1, the house of A-1 and
A-2 is at Sangam Vihar. However, the arrest memo of A-1 shows
otherwise. There are no materials on record to show that A-1 had
the knowledge of the transaction or that he had harboured PW-1 or
that she was a minor at the time of the alleged incident. The trial
court disbelieved the prosecution case that PW-1 had been sold for
a consideration of ₹25,000 on the ground that the testimony of
PW-1 on the said aspect was only hearsay. It has also not been
established that A-1 had played any active role in the exploitation
of PW-1 by any means. The prosecution case of kidnapping has
also been disbelieved by the trial court. A lady whom the victim
refered to as 'Bengali Bhabhi', a crucial witness was never
examined. In the light of such unsatisfactory evidence, the trial
court ought not to have found the accused guilt of the offence
alleged against him. Further, reference was made to the dictim in
Manoj v. State of M.P., (2023) 2 SCC 353, to canvass the point
that the sentence imposed on A-1 is disproportionate to the
offences alleged to have been committed by him.
11.1. As far as the case against A-2 is concerned, it was
submitted that the entire case of the prosecution is based on the
sole testimony of PW-1. The prosecution case of sale of PW-1 by
A-1 and A-2 has been disbelieved by the trial court. The
prosecution failed to examine crucial witnesses like the 'Bengali
lady' who is alleged to have helped PW-1 to contact her mother as
well as the friend of PW-1 to whom Dalip (the absconding
accused) had entrusted the school bag of PW-1, when he is alleged
to have enticed and taken away PW-1 on her way back home from
tuition. Further, the defence version of A-1 and A-2 that they had
merely attended the wedding of PW-1 and A-3, on the invitation of
Dalip, has been established by the testimony of DW-1. Lastly, it
was also pointed out that the sentence imposed on A-2 is quite
disproportionate. A-2 is a 59 year old lady with young children.
Her conduct has been quite good during the crime stage, trial as
well as after conviction. Therefore, a lenient view may be taken.
11.2. On behalf of A-3, it was submitted that he was under
the impression that PW-1 was above 18 years old. The marriage
was solemnized with the knowledge and consent of PW-1's
mother. PW-1 was in constant touch over telephone with her
mother during the entire duration of her stay with A-3. It was also
submitted that PW-3 is not a reliable witness as her testimony is
inconsistent, full of discrepancies, contradictions and material
improvement at different stages of the proceedings and trial. It was
also pointed out that there is delay of more than 6 months in the
crime being registered. Further, before the amendment of Section 6
of the PoCSO Act with effect from 16.08.2019, the offence was
punishable with rigorous imprisonment for a term not less than 10
years but which could extend to imprisonment for life and fine.
The incident is alleged to have taken place in the year 2013.
Therefore, the trial court went wrong in sentencing A-3 to 20 years
of imprisonment. A-3 has already undergone incarceration for
more than 10 years. Hence, it was submitted that the sentence
imposed on A-3 may be modified and reduced to the minimum
sentence of 10 years rigorous imprisonment.
12. Per contra, it was submitted by the learned Public
Prosecutor that the ingredients of Section 370 IPC have been
clearly made out. The clauses in the section are disjunctive, being
connected by the word 'or'. It was therefore sufficient for the
prosecution to establish the fulfilment of any one of the statutory
conditions, which has been satisfactorily and successfully done in
the case on hand. The findings arrived at by the Court are based on
a proper appreciation of the evidence on record and suffer from no
perversity or illegality calling for an interference by this Court.
13. The learned Amicus Curiae for the victim also made
submissions. According to him, the absconding accused Dalip, was
staying at the house of A-1 and A-2 and sexually exploiting PW-1
in the house. PW-1 deposed that A-1 had also attempted to assault
her. However, his attempts failed as A-2 was present at the home
at the said time. The testimony of PW-1 clearly establishes the
prosecution case and hence there is no ground for interference by
this Court.
14. Heard both sides.
15. I shall briefly refer to the evidence relied on by the
prosecution in support of the case. The gist of the case of PW-1 in
Exhibit PW-3/B the FIS, is as follows:- She is acquainted with
Dalip who used to visit her village and her house. One day in
August, 2013 while she was returning from school/tuition, she met
Dalip on the way. He stopped her and asked her to accompany him
to Delhi to visit his sister and that they would return home after
sightseeing in Delhi for about 5 to 6 days. When she refused, Dalip
grabbed her hand and pressurized her to join him. She became
sacred/frightened. Dalip took her school bag and handed it over to
one of her friends for entrusting it home. Dalip forcibly took her to
the Namkhana railway station from where he brought her to
Howrah railway station by train and bus. From Howrah, Dalip
brought her to Delhi by train. At the Delhi Railway Station, a
woman named Kajal (A-2) and her husband Gangaram (A-1)
whose names she came to know later were there to receive them.
From there, they took her to Tughlakabad, where she was kept in a
house in Gali No.24 for about 20 to 22 days, during which time
Dalip repeatedly raped her. She told Kajal several times about this.
But Kajal asked her to keep quiet and that she would scold Dalip.
During this time, both Kajal and Dalip kept compelling her to get
married, which she refused and then they would threaten and
intimidate her. One day, Dalip and Kajal asked her to wear a saree
to go to the temple and told her that they would get her married
off. When she refused, they started beating her and brought her to
Kalkaji temple, at which place Dalip, Kajal (A-2) and Gangaram
(A-1) forcefully married her off to a person whose name she later
came to know as Pummy (A-3). Pummy forcibly took her to his
house at Sangam Vihar, where he kept her against her will and
raped her several times. During Durga Pooja, she asked Pummy to
allow her to return home in West Bengal. He told her that he had
purchased her from Kajal (A-2) for ₹ 25,000/- out of which he
had already paid ₹ 20,000/-. Whenever she expressed her desire to
return home, Pummy (A-3) used to call Kajal (A-2) and have her
beaten up. Dalip, Kajal, Gangaram and Pummy have together
committed these atrocities against her.
15.1. In the 164 statement of PW-1 marked as Exhibit PW-
4/A, she reiterates her case in the FIS. She also stated that at the
wedding, A-3's paternal aunt (bua) and daughter, A-1, A-2 and A-
3's friends were present. A-3's aunt had allowed her to talk to her
mother occasionally. She informed her parents that she was staying
in Sangam Vihar, pursuant to which her parents informed the
police. She also stated that A-3 and Dalip used to beat her up and
make her do all work. She further stated that when Dalip first
established physical relationship with her, she had pain and that he
used to rape her even while she was menstruating. She stated that
A-3 would also have sexual intercourse with her despite her
resistance.
16. Though it was argued on behalf of the accused persons
that PW-1 is not a reliable witness as her testimony is full of
contradictions and inconsistencies, no contradictions have been
brought out in compliance with the procedure contemplated under
Section 145 of the Evidence Act. Therefore, the accused persons
cannot take advantage of the same.
17. As far as the age of PW-1 is concerned, the same stands
proved by PW-18/A, the certificate of birth, which shows her date
of birth to be 27.11.1998. The incident in this case took place on
13.08.2013 and thereafter. Therefore, PW-1 was 15 years old at the
time of the incident. Hence, her consent is immaterial.
18. It is true, as pointed out by the learned counsel for the
accused persons, that PW-1 is never seen to have raised any alarm
when Dalip, the absconding accused, is alleged to have kidnapped
her. Dalip brought her by train and bus to Delhi after travelling a
long distance from West Bengal. PW-1's testimony that she never
raised any alarm as she was threatened/scared is not convincing.
Further, her testimony regarding her acquaintance with Dalip is
also not consistent. In the FIS, she has stated that she knew Dalip
as he used to visit her house. But in her Section 164 Cr.P.C
statement, PW-1 says that Dalip was her friend. However, in the
testimony before the Court, she deposed that she does not know
Dalip, but she has met him several times on her way to tuition.
PW-2, the mother of PW-1, deposed that Dalip has never visited
her house. Therefore there are discrepancies in the testimony of
PW-1 regarding her acquaintance with Dalip. But that would not
help the accused persons in any way/ manner because even if it is
assumed that PW-1 went along with Dalip on her own will or
wish, the same is immaterial as PW-1 was a minor at the time of
the incident and therefore her consent is immaterial.
19. According to PW-1 when she and Dalip reached the
Delhi railway station, A-1 and A-2 were present to receive them
and that all of them took her to the house of A-1 and A-2, where
Dalip repeatedly raped her despite her resistance. Though she
complained to A-2 about Dalip, the latter never intervened.
Thereafter, they forcibly got her married off to A-3 against her
will. These aspects of PW1's testimony have not been discredited
in any way. The stand of A-1 and A-2 is that they merely attended
the marriage of PW-1 to A-3 as guests on the invitation of Dalip.
To prove their defence, DW-1 was examined who in the box
supports their case. But this version seems highly improbable as
the testimony of PW-1 to the effect that A-1 and A-2 were there to
receive her and Dalip at the railway station; that they took her to
their house and thereafter the incidents of sexual abuse has not
been discredited in anyway. The suggestion seen put on behalf of
A-1 to A-2 to PW-1 during her cross-examination is that it was
with the intention of making undue profit, she has falsely
implicated A1 and A-2, which of course was denied by her. On
going through the testimony of PW-1 along with her FIS and the
164 statement, I do not find any reason(s) to disbelieve her version
except her version regarding her acquaintance with the absconding
accused, Dalip. She seems to have been in a relationship with
Dalip and appears to have joined him on her own free will when an
offer was made by him to visit Delhi for sightseeing.
20. As far as A-3 is concerned, he admits his marriage with
PW-1. His version is that he was under the bonafide belief that
PW-1 was above 18 years of age. A-3 has also a case that he had
taken permission from the mother of PW-1 before the marriage.
This apparently is false because when PW-2, the mother, was
examined, there is no such case for A-3. Not even a suggestion
was put to PW2 that the marriage of PW-1 was solemnized after
seeking the former's permission. In fact, during the examination of
PW-2, he had never such a case. A-3 admits that he had sexual
relationship with PW-1. However, his explanation is that he had
married PW-1 and therefore as her husband, he did have sexual
relations with her.
21. Now the question is, based on the aforesaid evidence, can
the conviction and sentence of the trial court be sustained?
22. As far as offence under Section 6 of the PoCSO Act is
concerned the same is certainly made out because PW-1 was a
minor at the time of incident. PW-1 speaks of the penetrative
sexual assault on her by A-3 pursuant to the alleged marriage. A-3
also admits to have had sexual relationship with PW-1. PW-1 also
deposed that A-3 used to beat her when she resisted. She also
spoke of A-2 beating her up. It was submitted by the learned
counsel for the accused persons that there no materials or evidence
to show that any injury had been caused to the PW-1, pursuant to
the accused beating her up. The offence alleged is under Section
323 IPC. Hurt as defined under Section 319 IPC includes bodily
pain also. PW-1 deposed that pain was caused to her when A-2 and
A-3 had beaten her. Therefore, the offence punishable under
Section 323 IPC is clearly made out. Hence, the sentence awarded
to A-2 and A-3 for the offence punishable under Section 323 IPC
is confirmed.
23. Section 370 IPC reads thus:
"70. Trafficking of person.--(1) Whoever, for the purpose of
exploitation, (a) recruits, (b) transports,(c) harbours, (d)
transfers, or (e) receives, a person or persons, by--
First.--using threats, or
Secondly.--using force, or any other form of coercion, or
Thirdly.--by abduction, or
Fourthly.--by practising fraud, or deception, or
Fifthly.--by abuse of power, or
Sixthly.--by inducement, including the giving or receiving of
payments or benefits, in order to achieve the consent of any
person having control over the person recruited, transported,
harboured, transferred or received, commits the offence of
trafficking.
Explanation 1.--The expression "exploitation" shall include any
act of physical exploitation or any form of sexual exploitation,
slavery or practices similar to slavery, servitude, or the forced
removal of organs.
Explanation 2.--The consent of the victim is immaterial in
determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished
with rigorous imprisonment for a term which shall not be less
than seven years, but which may extend to ten years, and shall
also be liable to fine.
(3) Where the offence involves the trafficking of more than one
person, it shall be punishable with rigorous imprisonment for a
term which shall not be less than ten years but which may extend
to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall
be punishable with rigorous imprisonment for a term which shall
not be less than ten years, but which may extend to imprisonment
for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one
minor, it shall be punishable with rigorous imprisonment for a
term which shall not be less than fourteen years, but which may
extend to
imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor
on more than one occasion, then such person shall be punished
with imprisonment for life, which shall mean imprisonment for
the remainder of that person's natural life, and shall also be
liable to fine.
(7) When a public servant or a police officer is involved in the
trafficking of any person then, such public servant or police
officer shall be punished with imprisonment for life, which shall
mean imprisonment for the remainder of that person's natural
life, and shall also be liable to fine."
(Emphasis supplied)
24. It is true that the prosecution case of sale of PW-1 by
Dalip, A-1 and A-2 to A-3 for an amount of ₹ 25,000/- has been
disbelieved by the trial court. But PW-1's testimony that A-1 and
A-2 were at the railway station to receive them when she along
with Dalip arrived at the station has not been discredited. A-1 and
A-2 have no explanation for their presence at the railway station
and as to why they went to receive PW-1 and Dalip. Their version
is that Dalip, an acquaintance, had invited them to his sister's
wedding and so they had merely attended the wedding as guests. If
that be so, why were they present at the railway station to receive
Dalip and PW-1, who are supposed to be complete strangers to
them. Neither A-1 nor A-2 has a case that either PW-1 or Dalip is
related to them. PW-1 deposed that during her stay in the house of
A-1 and A-2, Dalip had raped her several times. PW-1 also
testified that she had complained about the acts of Dalip to A-2.
However, A-2 never reacted or responded, but advised her to keep
quiet. According to PW-1, it was A-2 who had dressed her up for
the wedding. These aspects in the testimony of PW-1 have also not
been discredited. PW-1 also deposed that A-1 had also tried to
sexually assault her, but his attempts failed as A-2 was present. No
explanation has been furnished by A-1 or A-2 as to why they
brought Dalip and PW-1 to their residence and permitted them to
reside therein. In light of the testimony of PW-1 which has not
been discredited and in the absence of any explanation from A-1
and A-2 as to their presence at the railway station and regarding
the events that transpired thereafter, it can only be said that they
had received PW-1 from Dalip by practicing fraud/deception for
the purpose of exploitation. Exploitation as per Explanation 1
includes any act of physical exploitation or any form of sexual
exploitation.
25. PW-1 after being taken to the house of A-1 and A-2, has
spoken about the sexual assault by Dalip. Despite A-2 being
informed of the same, she never took any action. Thereafter A-1
and A-2 along with Dalip is seen to have married off PW-1 to A-3.
Therefore, the ingredients of Section 370 IPC stand proved against
A-1 and A-2. Hence, the conviction of A-1 and A-2 for the offence
under Section 370 IPC is confirmed.
26. Now coming to Section 370-A IPC which reads:-
"(1) Whoever, knowingly or having reason to believe that
a minor has been trafficked, engages such minor for sexual
exploitation in any manner, shall be punished with rigorous
imprisonment for a term which shall not be less than five years,
but which may extend to seven years, and shall also be liable to
fine.
(2) Whoever, knowingly by or having reason to believe that a
person has been trafficked, engages such person for sexual
exploitation in any manner, shall be punished with rigorous
imprisonment for a term which shall not be less than three years,
but which may extend to five years, and shall also be liable to
fine."
(Emphasis supplied)
27. As noticed earlier A-3 admits to have married PW-1 and
had sexual intercourse with her. A-3 has no explanation for the
absence of the parents of PW-1 at the time of the marriage. He has
no case that the parents of PW-1 or any of her near and dear ones
were present at the time of the marriage. He has also no case that
PW-1 is an orphan or that he was under the impression that she
was an orphan. In normal circumstances, the parents and near and
dear ones of the girl would certainly have been present for the
marriage. But here, none were present. Therefore, the question
certainly arises as to why the parents as well as the near-dear ones
were absent at the time of the wedding. Though A-3 takes up a
defence that he had married PW-1 with the consent of her mother,
there is absolutely no materials on record to substantiate the same.
On the other hand, A-3 does not even have such a case when PW-2
was in the box. Therefore, his defence case of taking permission
from PW-2 seems to be an afterthought. A-3 further admits that it
was A-1 who had asked him to marry PW-1. What was the
compelling circumstances to solemnize the marriage in the absence
of the parents of PW-1 has not been explained. Therefore, in such
circumstances it can only be held that A-3 must certainly have
known or had reasons to believe that PW-1 had been trafficked.
28. It is true as pointed out by the learned counsel for A-1
that the site plan/mahazar of the house/room in which PW-1 is
alleged to have been harboured by A-1 and A-2 and sexually
assaulted by Dalip has not been produced before the Court.
However, in the light of the materials before the Court, the same is
immaterial because the testimony of PW-1 that she was taken to
the residence of A-1 and A-2 and married off to A-3, pursuant to
which the latter had sexual intercourse with her, which fact is
admitted by A-3, proves the case.
29. Now coming to the sentence that has been imposed on
the accused persons. As stated earlier, A-1 and A-2 have been
sentenced to a period of 18 years and 15 years respectively for the
offence punishable under Section 370 IPC. It was submitted on
behalf of accused persons that the sentence imposed by the trial
court is disproportionate. The trial court has not given any reasons
as to why more than the minimum sentence has been awarded.
Therefore, it was submitted that trial court went wrong in imposing
such harsh sentence and in support of the argument reference was
made to the dictum in Manoj (supra).
30. The trial court has not given any reasons as to why A-1
was given a sentence of 18 years and A-2, 15 years, for the same
offence. As PW-1 was a minor at the time of the incident, as per
sub-section (4) to Section 370 IPC, the minimum sentence to be
imposed is 10 years, but the same may extend to life. Taking into
account the role played by A-1 and A-2 in the crime, I find that a
period of 13 years' rigorous imprisonment each for A-1 and A-2
would be the proper sentence for the offence punishable under
Section 370-IPC.
31. A-3 has been awarded rigorous imprisonment of 6 years
for the offence punishable under Section 370-A IPC and to 20
years for the offence punishable under Section 6 of the PoCSO
Act. The incident in this case took place on 13.08.2013. Section 6
of the PoCSO Act was amended with effect from 16.08.2019 as
per which the minimum sentence is 20 years, but the same may
extend to imprisonment for life, which means imprisonment for the
remainder of the natural life of the person or death. Before the
amendment, the offence under Section 6 was punishable with
rigorous imprisonment for a term not less than 10 years, which
may extend to life. As the incident in this case took place before
16.08.2019, the trial court went wrong in applying the amended
provisions of Section 6 as far as A-3 is concerned. Therefore, the
sentence of 20 years is liable to be modified and hence the same is
modified to 13 years.
32. The conviction and sentence of A-3 for the offences
under Section 370-A and 323 IPC is confirmed.
33. In the result, the appeals are partly allowed. The
conviction of A-1 for the offence punishable under Section 370
IPC; conviction of A-2 for the offence punishable under Sections
323 and 370 IPC and conviction of A-3 for the offences punishable
under Sections 323, 370A, 376(2)(i) IPC and Section 6 of the
PoCSO Act is confirmed. However, the sentence of rigorous
imprisonment awarded to A-1 and A-2 for the offence punishable
under Section 370 IPC is modified to 13 years. The sentence of A-
3 for the offence punishable under Section 6 of the PoCSO Act is
modified to 13 years.
34. Applications, if any, pending shall stand closed. The
copies of this judgment be placed in the connected matters.
35. A copy of this judgment shall also be communicated to
Jail Superintendent for information and necessary compliance.
CHANDRASEKHARAN SUDHA
(JUDGE)
JANUARY 19, 2026
Mj/ER
