[Cites 12, Cited by 0]
Delhi High Court
Islam vs The State (Govt. Of Nct) Delhi on 22 January, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 19.01.2026
Judgment pronounced on: 22.01.2026
+ CRL.A. 74/2025 and CRL.M.(BAIL) 134/2025
ISLAM .....Appellant
Through: Mr. Gautam khazanchi and Ms. Aditi
Kukreja, Advocates.
Mr. Anubhav Singh, Mr. Nitin Kumar
and Ms. Maria Mary, Advocates.
versus
THE STATE (GOVT. OF NCT) DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Nagendra Kumar, PS - Sunlight
Colony.
Mr. Ashutosh Kaushik, Advocate
(DHCLSC) for victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Sections 374(2) Cr.P.C. and 415 of the
BNSS has been filed by the accused in SC No. 2278/2016 on the
file of the Special Court under the Protection of Children from
Sexual Offences Act, 2012 (PoCSO Act), South-East, Saket
Courts, New Delhi challenging the judgment dated 10.07.2024, as
per which he has been convicted and sentenced for the offences
punishable under Sections 363, 342, 506 IPC and Section 6 of
PoCSO Act.
2. The prosecution case is that about 5 to 6 days before
11.05.2015, the accused kidnapped PW1, a minor girl aged 8
years, from lawful guardianship, took her to his room, confined her
there and committed penetrative sexual assault on her. The
accused is also alleged to have threatened PW1 with dire
consequences in the event she revealed the incident to others.
Hence, as per the final report/ chargesheet, the accused is alleged
to have committed the offences punishable under Sections 363,
342, 506 IPC and Section 6 of the PoCSO Act.
3. Based on Ext. PW1/A, First Information Statement (FIS)
of PW1, recorded on 11.05.2015, crime 316/2015, Sunlight Colony
Police Station, i.e. Ext. P2 FIR was registered by PW 14, Women
Sub-Inspector. PW14, the Sub-Inspector, conducted the
investigation to the crime and on completion of the same,
submitted the chargesheet/ final report against the accused alleging
the commission of the 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 Cr.P.C. After hearing both sides,
the trial court, as per order dated 11.12.2015, framed a charge
under Sections 363, 342, 506 IPC and 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, PW1 to PW16 were
examined and Exts. P1-P3, PW1/A-C, PW4/A-E, PW5/A-B,
PW6/A, PW7/A-D, PW9/A-C, PW10/A, PW11/A, PW12/A,
PW13/A, PW14/B-E and PW15/A were marked in support of the
case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313 Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
led by the prosecution. He denied all those circumstances and
maintained his innocence.
7. After questioning the accused under Section 313 Cr.P.C.,
the compliance of Section 232 Cr.P.C. was mandatory. No hearing
as contemplated under Section 232 Cr.P.C. 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). In the case on hand,
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. On consideration of the oral and documentary evidence on
record and after hearing both sides, the trial court vide the
impugned judgment, held the accused guilty of the offences
punishable under Sections 363, 342, 506 IPC and Section 6 of the
PoCSO Act. Hence, as per order dated 12.09.2024, sentenced him
to rigorous imprisonment for one year for the offence punishable
under Section 363 IPC and to pay fine of ₹2,000/- and in default of
payment of fine, to simple imprisonment for two months; to
rigorous imprisonment for one year for the offence punishable
under Section 342 IPC; to rigorous imprisonment for two years for
the offence punishable under Section 506 IPC and to rigorous
imprisonment of ten years for the offence punishable under Section
6 of the PoCSO Act and to fine of ₹2,000/- and in default of
payment of fine, to simple imprisonment for two months. The
sentences have been directed to run concurrently. The fine
amount, if realized, has been directed to be paid as compensation
to the victim. Benefit under Section 428 Cr.P.C. has also been
allowed. Aggrieved, the appellant/ accused has come up in appeal.
9. It was submitted by the learned counsel for the appellant/
accused that there are several inconsistencies, contradictions and
improvements in the statements and testimony of PW1. Hence, the
trial court ought not to have relied on her testimony for convicting
the accused. Further, materials have come on record to show that
there are several rooms situated adjacent to the room of the
accused in which the crime is alleged to have taken place. It has
also come out in evidence that the adjacent rooms were open and
that people were present in the said rooms when the crime is
alleged to have been committed. In such circumstances, it was
highly improbable and impossible for the accused to have
committed the offences charged against him.
10. Per contra, it was submitted by the learned Additional
Public Prosecutor that the materials on record clearly establish the
prosecution case. Nothing has been brought out to discredit the
testimony of PW1 and hence, there is no reason to disbelieve or
discard her testimony. There is no infirmity in the judgment of the
trial court calling for an interference by this Court, argued the
prosecutor.
11. I will now briefly refer to the materials on record relied
on by the prosecution in support of the case. PW1/A, the FIS of
PW1, recorded on 11.05.2015 reads thus:- "I am studying in the
third standard. There is an old uncle residing in the 1st floor of the
building where I am staying with my parents and sisters on the 5th
floor. The uncle used to call me when I go up and down the stairs.
He used to fondle my cheeks. He buys eatables for me and gives
me money. About 5 to 6 days back, the old uncle whose name is
Aslam took me to his room. After closing the door, he undressed
me. He spread a blanket on the floor, undressed himself and lay on
top of me. He fondled my cheeks. He applied/put sugar on my
genital and ate it. He put his genital into my genital. When I cried
out in pain, he closed/gagged my mouth with his hand. He laid on
top of me for quite some time. He gave me money. He then
showed a knife and threatened me with dire consequences in case I
revealed the incident to others. I became very scared/afraid. I did
not tell anybody and so he used to take me everyday to his room
and repeat the dirty things on me. My tuition teacher (PW2) asked
me about the money in my hand. I did not tell her anything. But
when didi asked me lovingly, I told her about the incident. Didi
asked me to tell my mother. I was afraid and hence, I did not tell
my mother. Today also, in the evening, uncle took me to his room
and repeated the dirty things/acts on me. After that, when I went
for tuition, didi understood everything and so she informed my
mother, who, in turn, informed my father. My father informed the
police....."
12. In her 164 statement marked as PW1/C recorded on
12.05.2015, PW1 reiterates her case in the FIS. PW1 in the box
initially deposed that she cannot recall what the accused had done
to her and that she can only recall a part of it. She further deposed
that uncle (accused) had asked her not to reveal the incident to
others or else he would stab her with a knife. PW1 further deposed
that she does not remember what the accused had asked her not to
disclose. She had disclosed the incident to her tuition didi but she
does not remember as to what she had disclosed to the former.
When PW1 did not initially support the prosecution case, the
prosecutor sought the permission of the trial court for putting
questions as put in the cross-examination, which request was
allowed. On further examination by the prosecutor, PW1 admitted
the sexual assault by the accused. She deposed that the accused
used to give her money; that he used to kiss on her cheeks; that he
had called her inside his room; undressed her and after removing
his clothes, had put sugar in her vagina, licked the same; he had
inserted his penis into her vagina; when she cried out in pain, the
accused gagged her and that the accused had given her money and
had also threatened to kill her by showing a knife. PW1 also
admitted that the sexual assault was repeated by the accused daily
for the next 5 to 6 days. On further examination, she admitted that
PW2, her tuition didi, had asked her about the source of money in
her possession and then she had disclosed the incident to the latter.
PW2 had informed her mother and thereafter, the police was
informed.
12.1 PW2, the tuition teacher of PW1, deposed that in the
year 2015, she used to take tuitions and PW1 was one of her
students. In the month of May 2015, she noticed that PW1 was
having money with her. When she enquired about the same, PW1
revealed the incident to her. She informed PW1's mother who
thereafter informed the police.
12.2 PW3, the mother of PW1 deposed that her daughter
used to attend the tuition class of PW2. Pursuant to her daughter
informing PW2 about the sexual assault by the accused, PW2 had
informed her about the same.
13. Though it was submitted by the learned counsel for the
appellant that there are several contradictions in the testimony of
PW1, no contradiction(s) has been proved as per the procedure
contemplated under Section 145 of the Evidence Act. Therefore,
the appellant/ accused cannot be heard to argue that there are
contradictions in the testimony of PW1.
14. PW9, Medical Record Technician, AIIMS, New Delhi
produced the office copy of the Medico-Legal Certificate (MLC)
which was issued by the doctor who examined the victim. The
same has been marked as PW9/B. PW16, SR, Department of
Obstetrics and Gynaecology, AIIMS, New Delhi, deposed that Dr.
Seema Yadav who examined PW1, had left the services of the
hospital in the year 2018 and that she is familiar with the signature
and handwriting of the latter as she had worked as an intern in the
unit of the latter about a month. PW16 identified the signature of
Dr. Seema Yadav in Ex. PW9/B, the MLC.
15. PW7, Principal, SDMC Primary School (Girls), Sarai
Kale Khan, New Delhi, deposed that as per records, the date of
birth of the child is 03.07.2008. The attested copies of the
admission register, admission form and affidavit have been marked
as Ex. PW7/A to Ex. PW7/C. PW7 was never cross-examined. The
incident took place in the year 2015. Therefore, PW1 was just 7
years at the time of the incident and hence, the provisions of the
PoCSO Act are applicable.
16. The medical evidence on record shows that the hymen of
PW1 was torn. It has to be borne in mind that at the time of
examination, PW1 was just 8 years old. The defence version is that
this is a false implication as the accused had advanced an amount
of ₹20,000/- to PW1's father. When he demanded the money back,
the parents of PW1 has falsely implicated him by concocting a
false story. This version does not appear probable or true in the
light of the materials of record. It is true that PW1 initially did not
disclose the incident while she was examined before the court. But
on being further questioned by the prosecutor, she admitted the
prosecution case of repeated penetrative sexual assault by the
accused. The version of PW1 is corroborated by the testimony of
PW2. No reason(s) has/have been shown as to why PW2 should
also support the prosecution case or depose against the accused.
17. It was further argued on behalf of the appellant/ accused
that PW1's case that she was residing in the 5th floor of the
building in which the appellant is residing in the 1st floor, has
turned out to be false from the materials on record. The materials
on record show that the building has only 4 floors. Again, it needs
to be borne in mind that PW1 was just 8 years old when the
incident occurred. Even assuming that her testimony regarding the
number of floors of the building is wrong, the same does not in any
way affect the prosecution case. I do not find any reasons to
disbelieve PW2 or PW3. The testimony of PW1 that there was
penetrative sexual assault is corroborated by the medical evidence
which shows that there was a tear in the hymen of PW1, a girl
aged about 7 to 8 years. In these circumstances, I find that the trial
court was right in finding the guilt of the accused for the offence
punishable under Section 6 of the PoCSO Act.
18. The testimony of PW1 also makes it clear that pursuant to
the incident, the accused had threatened her with dire
consequences in case she revealed the incident to others.
Therefore, the conviction and sentence under Section 506 IPC also
suffers from no infirmity.
19. In the result, the appeal sans merit it dismissed.
20. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JANUARY 22, 2026
kd
