[Cites 34, Cited by 0]
Delhi High Court
Navdeep @ Sonu vs State (Nct Of Delhi ) on 24 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 16.03.2026
Judgment pronounced on: 24.03.2026
+ CRL.A. 23/2025 and CRL.M.(BAIL) 44/2025
NAVDEEP @ SONU .....Appellant
Through: Mr. Sudarshan Rajan (DHCLSC) and
Mr. Hitain Bajaj, Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for the State.
+ CRL.A. 47/2025 and CRL.M.(BAIL) 87/2025
KRISHAN .....Appellant
Through: Mr. Shivek Trehan (DHCLSC) and
Ms. Manika Pandey, Advocates.
versus
THE STATE (GOVT.OF NCT) DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In these appeals filed under Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS), accused
nos. 1 and 2 (A1 and A2) in Sessions Case No. 407/2018 on the
file of the Additional Sessions Judge- Special, FTSC (POCSO),
North District, Rohini Courts Complex, Delhi assail the judgment
dated 02.08.2024. By the said judgment, the accused persons have
been convicted and sentenced for the offences punishable under
Section 377 read with Section 34of the Indian Penal Code, 1860
(the IPC) and Section 6 of the Protection of Children from Sexual
Offences, 2012 (the PoCSO).
2. The prosecution case is that for about one year prior to
23.06.2017, on several occasions at different places and also on
23.06.2017 at about 11:00 AM in a room situated at Patase Wali
Gali, Bawana, the accused persons repeatedly committed gang
penetrative sexual assault upon PW1. It is also alleged that the
accused persons, in furtherance of their common intention,
committed repeated carnal intercourse against the order of nature
with PW1. Hence, the accused persons are alleged to have
committed the offences punishable under Section 377 read with
Section 34 IPC and Section 5(g) and (l) of the PoCSO Act.
3. Based on Ext. PW1/A FIS of PW1, crime no. 257/2017
Bawana Police Station, that is, Ext. PW6/A FIR was registered by
PW10, Sub Inspector. PW10 conducted investigation into the
crime and on completion of the same, submitted the
chargesheet/final report before the Court, 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 of the Code of Criminal
Procedure, 1973 (the Cr.P.C). After hearing both sides, as per
order dated 20.08.2018, a Charge under Section 377 read with
Section 34 IPC and Sections 5(g) and (l) of the PoCSO Act was
framed against the accused persons, which was read over and
explained to them, to which they pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 12 were examined
and Exts. PW1/A, PW1/B, PW2/D1, PW3/A-C, PW6/A, PW6/C,
PW6/D, PW7/A, PW9/A-B, PW10/A-K, PW10/M and PW12A-C
were marked. On 09.11.2022, a joint statement of the accused
persons was recorded under Section 294 Cr.P.C. wherein the
genuineness of the preparation of the 164 statement of PW1 was
admitted.
6. After the close of prosecution evidence, the accused
persons were questioned under Section 313(1)(b) 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. Both A1 and
A2 submitted that while playing kabbadi, they had a scuffle with
PW1, and so the latter, in order to take revenge, gave a false
complaint against them. The case property sent to the FSL was
tampered with by the Investigating Officer (IO) at the instance of
the mother of PW1 in order to create false evidence.
7. After questioning the accused persons under Section
313(1)(b) 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 them.
8. DWs. 1 to 4 were examined on behalf of the accused
persons and Ext. DW2/X-1 and DW4/A were marked.
9. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court vide the impugned
judgment dated 02.08.2024, held the accused persons guilty of the
offences punishable under Section 377 read with Section 34IPC
and Section 6 of the PoCSO Act. The accused persons have been
sentenced to undergo rigorous imprisonment for fifteen years each
and fine of ₹10,000/- each and in default of payment of fine, to
simple imprisonment for a period of 15 days each for the offence
punishable under Section 6 of the PoCSO Act and rigorous
imprisonment for a period of ten years each and fine of ₹10,000/-
each and in default of payment of fine, to simple imprisonment for
a period of fifteen days each for the offence punishable under
Section 377 IPC. The sentences have been directed to run
concurrently. The benefit under Section 428 Cr.P.C. has been
extended to the accused persons. Aggrieved, A1 and A2 have
preferred these appeals.
10. It was submitted by the learned counsel for A1 and A2
that the alleged video capturing the incident has neither been
recovered during the investigation nor produced before the court.
There was a fight between the accused persons and PW1 earlier,
and due to this enmity, the latter lodged a false complaint against
the former. It was also pointed out that the injury recorded in the
MLC is merely described as an erosion and not as a cut, bruise, or
reddish mark. Such erosion could have occurred due to several
other reason(s). According to PW11, the anal tone of PW1 was
normal, and the anal sphincter was not lax, meaning thereby that
no penetrative sexual assault had taken place. The burden of proof
was heavily on the prosecution to establish the case. However, the
evidence brought on record is insufficient to convict A1 and A2
for such a serious offence.
11. It was also pointed out that there is a delay of almost one
year in depositing the samples of the accused persons in the
Malkhana. Ext. PW7/A MLC of PW1 shows that his perianal and
anal swabs were taken on 23.06.2017. Ext. PW10/A seizure memo
also indicates that the samples were seized on 23.06.2017.
However, the said samples were deposited in the Malkhana only
on 10.04.2018. It was submitted that the last incident of assault is
stated to have occurred on 23.06.2017. Admittedly, A1 was not
involved in the said incident. But, Ext. PW4/A, the FSL report,
states that the DNA in the samples taken from the clothes worn by
PW1 on the date of the incident matched with the samples of both
the accused persons. It was submitted that initially, the accused
persons were sent to the Juvenile Justice Board (JJB), and their
subsequent arrest took place only in March 2018. After their
apprehension, their semen samples were collected, and thereafter,
the case property was deposited in the Malkhana. Therefore, there
is a high possibility that the case property was tampered with. It
was further submitted that in PW1's statement under Section 164
Cr.P.C., he stated that the video was sent to him on Facebook.
However, the same was not produced by him before the police.
The place of the incident was not inspected by the police, nor was
the mattress on which PW1 is stated to have been assaulted seized.
In light of the aforesaid facts, the trial court ought not to have
found A1 and A2 guilty of the offences alleged against them, goes
the argument.
12. It was submitted by the learned Additional Public
Prosecutor that the testimony of PW1 is consistent throughout
without any major inconsistencies. It has been corroborated by the
testimony of PW2. The injury on the left cheek of PW1 has been
corroborated by the MLC of PW1. There is a possibility of the
video having been removed/deleted by the accused persons since
they were only arrested after the JJB declared them as major on
06.09.2017. There is no infirmity in the impugned judgment
calling for an interference by this court, argued the prosecutor.
13. Heard both sides and perused the materials on record.
14. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
appellants/ A1 and A2 by the trial court are sustainable or not.
15. I shall briefly refer to the evidence relied on by the
prosecution in support of the case. The gist of the case of PW1 in
Ext. PW1/A FIS/FIR, seen recorded on 23.06.2017, reads as
follows: "For the past several years, I have been visiting the Rajiv
Gandhi Stadium in Bawana. While so, I met two individuals:
Krishan Sehrawat (A1) and Navdeep Malik (A2) both residents of
Village Bawana, Delhi. Around a year back, Krishan (A1) and
Navdeep (A2) threatened me and committed galat kaam on me.
(लै टीन वाली जगह म से िकया था) Since that time, they had
repeatedly committed such acts on me. Whenever I tried to refuse,
they would threaten me, stating that they had recorded an obscene
video and if I refused, they would show the video to everyone and
tarnish my reputation. Out of fear of these threats, I did not report
the matter to anyone. This morning at around 10:00 AM, Krishan
(A1) and Navdeep (A2) came to my house and pressurised me to
accompany them, threatening again to release the video if I
refused. They took me to a room in Patase Wali Gali, Bawana.
Upon reaching the room, Navdeep (A2) stated he would go first,
while Krishan (A1) stood outside the room, saying he would take
his turn afterwards. Navdeep (A2) then forced me to remove my
clothes and lie on the bed and committed an unnatural act with me.
I experienced significant pain and began to cry. Seeing this,
Navdeep (A2) told Krishan (A1) that they should stop. The
accused persons allowed me to leave. When I reached home at
around 11:30 PM, on being questioned by my mother (PW2), I
narrated the entire incident to her".
15.1. Ext PW1/B, the 164 statement of PW1 is seen recorded
on 25.06.2017, in which he has stated thus: He used to play
kabaddi. He met two older boys, Navdeep Malik (A2) and Krishan
Sehrawat (A1), who also played kabaddi. This started about a year
and a half ago. One day, while he was returning after practice, he
was running late. The two individuals stopped him on the ground,
saying they needed to talk. They forcibly took him to the changing
room in the stadium, where they committed an unnatural act. They
told him they had done the same to other boys and threatened him
not to tell his family. They warned him that if he spoke out, they
would beat him and repeat the act. Following the first incident,
they did nothing for two months. However, after that, they began
coming to his school every month. They would intimidate him and
take him with them. On several occasions, under the pretext of
taking him to a stadium or a room, they took him to their homes
and committed unnatural acts. On the last working day before a
school holiday, the school closed early. They came to pick him up
and took him to Krishan's (A1's) house, where they again
committed the act. When PW1 said he wanted to go home, they
told him he would have to come back quickly. While he was at
home, they sent him messages and videos on Facebook,
threatening that if he didn't return quickly, they would show the
videos to everyone. They claimed to have recorded videos of the
acts. When they came to his house the next day and he refused to
go, they showed him the videos to scare him. They then forcibly
took him to a friend's room in Bawana. At that location, Navdeep
(A2) stayed in the room while Krishan (A1) and another person
(PW5) stayed outside. Navdeep (A2) again committed an
unnatural act. When he began to cry, Krishan (A1) told Navdeep
(A2) to stop, and Navdeep (A2) eventually let him go. He reached
home late, around 12:00 PM. His mother (PW2) questioned him
about his lateness and scolded him. He eventually told her
everything that had happened. His mother then took him to the
police station. Last day, the family members of A1 and A2 had
come home and apologized for the incident. After they left, a
person named Chander Mohak Shastri came to his house. The said
person intimidated him by saying they were influential zamindars
and threatened that they would not let him reach the stage of
giving testimony in the court.
15.2. PW1, when examined before the trial court, deposed
that he had been playing kabbadi since he was in the ninth grade at
the Rajiv Gandhi Stadium, Bawana. Accused Navdeep's (A2's)
brother, Jaydeep, his friend, also played kabaddi. Navdeep (A2)
and Krishan (A1) were his seniors in kabaddi and used to practice
and play matches at the same stadium. One day, after practice at
the stadium, Navdeep (A2) and Krishan (A1) stopped him and
took him to the changing room. They first beat him, then forced
him to remove his clothes and committed galat kaam (unnatural
act). Thereafter, they threatened and intimidated him, promising
that they would not do it again as long as he did not tell anyone.
Out of fear, he stopped going to the stadium for several days.
When he used to go to school, A1 and A2 would show up and
pressurize him to return to the stadium under the pretext of
practising for the national games. Trusting them, he returned only
to find no practice/trials were taking place. They again committed
galat kaam with him, stating that they had recorded an obscene
video of the previous act and threatened to make the video viral if
he refused them. He complied in fear of the video getting leaked.
In the year 2017, when he gave the FIS/FIR he had passed the
eleventh grade and by then for almost 3 years A1 and A2 had been
assaulting him. They would take him to the stadium once or twice
a month and then would beat and threaten him that they would leak
the video and used to force him into these acts. On 23.06.2017,
A1 and A2 came to his house and asked him to accompany them.
He went with them due to the aforesaid fears. They took him on a
motorcycle to a friend's room in Bawana. Navdeep (A2) had the
keys to the room. First, Navdeep (A2) forced him to undress and
assaulted him as before, also biting him on the left side of his face.
He began to cry from the pain. Krishan (A1), who was sitting
outside, saw him crying and said that he would not commit galat
kaam that day and allowed him to leave. A1 and A2 came to his
house in the morning around 10:00 AM and he returned home
between 11:30 AM and 12:00 Noon. His mother (PW2) noticed
the mark on his face and questioned him. Under her pressure, he
revealed everything. His mother (PW2) then took him to the
Bawana Police Station, where his complaint was registered.
15.3. PW1 in his cross-examination reiterated his case that he
did not disclose the incident for a long time because the accused
persons used to threaten him that they would circulate his video.
While he could not recall if he had mentioned the video to the
police in his initial statement, he confirmed that he mentioned
about it in his subsequent statements. He admitted that he had
never told his mother (PW2) about the previous incidents. He
admitted that he did not provide a specific date for the first
incident but denied that the date provided for the final incident,
i.e., 23.06.2017, was false. PW1 deposed that he continued to
attend school normally during the 3-4 years during which the
incidents of abuse occurred. On 23.06.2017, A1 and A2took him to
a location in Bawana, about 3-4 km from his home. His mother
(PW2) was home that day as she was not at work. He did not
inform his mother (PW2) that he was leaving with them. He
clarified that when A1 and A2 asked him to accompany them, he
had initially refused, citing that they had assaulted him just two
days prior. However, they threatened him with the video again and
therefore, he went with them without informing anyone.PW1 was
unable to give the exact address of the room to which he was
taken. However, he deposed that it is called patashe wali gali.
There was a mattress on the floor. PW1 admitted that the police
had not seized the mattress in his presence and that he had never
gone with the police to identify the room. PW1 denied the
suggestion that the mark on his cheek was an injury he had
sustained while playing kabaddi.
16. PW2 deposed that the date of birth of PW1, her youngest
child, is 01.08.2001. On the morning of 23.06.2017, after 09:00
AM, two boys called PW1 from outside their house. PW1 went out
to see them and did not return. When she went outside, neither her
son nor the boys were there. She did not see who the boys were.
About one and a half hour later, PW1 returned home in a state of
total distress and he had a large, blue bruise-like mark on his
cheek. When she asked PW1 what happed, he fell into her arms
and began to cry. He told her that Navdeep (A2) (Jaydeep's
brother) and Krishan (A1) had done galat kaam with him. She had
never seen Navdeep (A2) or Krishan (A1) before and only knew
their names through PW1. She subsequently informed the police
and took her son to the police station. The police then took him to
the hospital for a medical examination. She saw Navdeep (A2) and
Krishan (A1) for the first time at the police station. On a day
before PW1 testified in the court, a friend of Navdeep (A2)
blocked his path and threatened him, stating that Navdeep would
not spare him once he was released from jail. Her son is quite
frightened due to this despite the fact that she has lodged an FIR
regarding the threat. PW2 also deposed that on the day PW1 was
examined, A1 and A2 abused her and threatened that they would
not leave her alone.
16.1. PW2 in her cross-examination deposed that she was
then working as a 'Nursing Ardali' at Sanjay Gandhi Memorial
Hospital. She previously worked as a Security Guard at Maharishi
Valmiki (MV) Hospital for about 2-3 months in late 2013 or early
2014. PW2 denied exaggerating the facts to strengthen the case.
PW2 denied that the complaint was a result of a quarrel during
kabaddi practice. She denied using her influence at MV Hospital
to have doctors prepare a false MLC or colluding with the police
and doctors to manufacture false evidence. PW2 denied that the
mark on her son's face was a sports injury or due to a skin
condition.
17. PW10, the IO, deposed that on 23.06.2017, he was posted
as Sub Inspector at Bawana Police Station. There was no
tampering of the sealed parcels till the same remained in his
custody. According to PW10, the blood samples and parcels were
deposited in the malkhana on the same day, though he could not
recall the entry numbers or if he had signed Register No. 19. He
denied that the records were fabricated or that the case property
was unsealed. The property was sent to the FSL on the direction of
the SHO.PW10 denied that the semen samples had been planted or
that the signatures of A1 and A2had been obtained on blank
papers. He admitted that he did not seize the mobile phones or
obtain CDRs, as A1 and A2 claimed that they did not use phones.
He maintained that he had visited the scene of occurrence.
18. PW7, Medical Officer, MV Hospital, deposed that on
23.06.2017 he examined PW1 and prepared the MLC. During the
examination, he found bruises on PW1's left cheek (reddish color).
PW7 deposed that he does not know if PW2 was working at the
MV Hospital, Pooth Khurd. He denied the suggestions that he was
intentionally or deliberately concealing the same or that he was
fully aware that PW2, the mother of the victim, was working in
MV Hospital Pooth Khurd.
19. PW11, Senior Resident, MV Hospital deposed that he
had also examined PW1 on 23.06.2017. He noticed that there was
a bite pattern on the left cheek of the patient. The perianal area had
paste like material, which was sent for forensic examination.
Patient's anal canal had multiple erosions, three in number: one
anterior and two posterior. According to PW11, the possibility of
recent anal penetration could not be ruled out. PW11 in his cross-
examination denied the suggestions that there was no injury on the
private part of PW1 and that PW2, the mother of PW1, was earlier
working at MV Hospital, and that he had prepared a report at her
instance. He deposed that in case of chronic anal-penile
penetration, the anal sphincter can become lax. PW1's anal tone
was normal, which means that his anal sphincter was not lax.
20. The question, is whether the aforesaid evidence proves
the prosecution case beyond reasonable doubt. According to the
learned counsel for A2, Ext. PW7/A MLC of PW1 records only an
erosion and does not indicate injuries such as cuts, bruises, or
marks that would suggest forceful penetration. It was also pointed
out that the anal tone and sphincter were reported as normal and
not lax. Therefore, the argument is that the medical evidence is not
supporting the prosecution case.
21. Ext. PW7/A MLC of PW1 records the presence of
injuries in the anal canal in the form of multiple erosions and also
notes the presence of paste like material in the perianal region,
which was collected for forensic examination. Moreover, PW11
has noted in the MLC as well as deposed that the possibility of
recent anal penetration could not be ruled out. It is well settled that
medical evidence is primarily corroborative in nature and cannot
override reliable ocular testimony. As held in Solanki
Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484,
ordinarily, the value of medical evidence is only corroborative. It
proves that the injuries could have been caused in the manner
alleged and nothing more. The use which the defence can make of
the medical evidence is to prove that the injuries could not
possibly have been caused in the manner alleged and thereby
discredit the eyewitnesses. Unless, however the medical evidence
in its turn goes so far that it completely rules out all possibilities
whatsoever of injuries taking place in the manner alleged by
eyewitnesses, the testimony of the eyewitnesses cannot be thrown
out on the ground of alleged inconsistency between it and the
medical evidence (See also Rangnath Shamrao Dhas v. State of
Maharashtra, (2009) 4 SCC 33: 2009 KHC 4471).
21.1 As held in Madan Gopal Kakkad v. Naval Dubey,
(1992) 3 SCC 204, a medical witness called in as an expert to
assist the court is not a witness of fact and the evidence given by
the medical officer is really of an advisory character given on the
basis of symptoms found on examination. The expert witness is
expected to put before the court all materials inclusive of the data
which induced him to come to the conclusion and enlighten the
court on the technical aspect of the case by explaining the terms of
science so that the court, although not an expert, may form its own
judgment on those materials after giving due regard to the expert's
opinion because once the expert's opinion is accepted, it is not the
opinion of the medical officer but of the court.
21.2 In Vishnu Alias Undrya v. State of Maharashtra,
AIR 2006 SC 508: 2006 KHC 29, it has been held that the expert
medical evidence is not binding on the ocular evidence. The
opinion of the Medical Officer is to assist the court as he is not a
witness of fact and the evidence given by the Medical Officer is
really of an advisory character and not binding on the witness of
fact.
21.3 In Punjab Singh v. State of Haryana, 1984 KHC 803:
AIR 1984 SC 1233 the contention that the prosecution case had to
be disbelieved as the medical evidence was inconsistent with the
direct testimony was rejected and it was held that if direct evidence
is satisfactory and reliable the same cannot be rejected on
hypothetical medical evidence.
21.4 It is only in cases where the ocular testimony is so
inherently improbable and intrinsically incredible, that the same
cannot be accepted in preference to the evidence of the medical
expert (Purshottam v. State of M. P., AIR 1980 SC 1873: 1980
KHC 487). Likewise, if the evidence of the prosecution witnesses
is totally inconsistent with the medical evidence, it would be a
fundamental defect in the prosecution case and unless this
inconsistency is reasonably explained it is sufficient not only to
discredit the evidence but the entire case (Mani Ram v. State of
U. P, (1994) Supp. 2 SCC 289: 1994 KHC 963).
22. Coming back to the case on hand, this is not a case where
the ocular testimony is so inherently improbable or intrinsically
incredible that the same needs to be rejected. The absence of
severe injuries or the presence of normal anal tone does not by
itself rule out the possibility of sexual assault, particularly when
the examination reveals other relevant findings such as multiple
erosions. In the case on hand, the medical evidence, far from
contradicting the version of PW1, substantially supports it. The
medical evidence, when read together with the consistent version
of PW1, corroborates the prosecution case.
23. The prosecution case rests primarily on the testimony of
PW1, supported to a limited extent by the testimony of his mother
(PW2) and the medical evidence. It is settled law that the sole
testimony of the victim, if found to be trustworthy and credible,
can form the sole basis of conviction even in the absence of
independent corroboration (See Ganesan v. State, (2020) 10 SCC
573).
24. The testimony of PW1 gives a pattern of repeated sexual
assault committed by the accused persons over a period of time,
accompanied by threats that an obscene video had been recorded
and would be circulated if he resisted. The explanation given by
PW1 for not reporting the earlier incidents is stated to be the fear
created by these threats. A few inconsistencies in PW1's testimony
have been pointed out. In Ext. PW1/A FIS/FIR, PW1 states that
A1 and A2 had been committing galat kaam with him for about a
year prior to 23.06.2017. However, in the Section 164 statement,
he states that the incidents began about one and a half year earlier.
In his testimony before the court, PW1 stated that the accused
persons had been assaulting him for almost three years. In the 164
statement, he stated that video and messages were sent to him
through Facebook. However, this fact was not mentioned in Ext.
PW1/A FIS or in the testimony before the court. In the Section 164
statement, PW1 stated that A1 and A2 came to pick him up from
his house and took him to a friend's (PW5) room in Bawana. On
the said day, while A2 was sexually assaulting him, A1 and PW5
were waiting outside. But PW5 denied his presence at the spot.
Further, there is no mention of physical injury, such as the bite
mark, in Ext. PW1/A FIS and it is only mentioned later in the 164
statement and in the testimony before the court. Hence, pointing to
the aforesaid aspects it was submitted on behalf of A1 and A2 that
PW1 is not a credible witness who can be believed for arriving at a
conclusion regarding the guilt of the accused persons.
25. It is true that the video recording alleged to have been
used by the accused persons to threaten PW1 was never seized or
produced before the court. According to the learned counsel for A1
and A2, no such video exists and hence the reason why the same
could not be recovered/seized. The non-recovery/seizure of video
alone cannot be made a ground to disbelieve the entire prosecution
case because on going through the testimony of PW1, I do not find
any reasons to disbelieve or discard his testimony. It is true that
there are inconsistencies regarding the duration of the period
during which the abuse/assault is stated to have continued.
However, the inconsistencies pointed out has in no way affected
the prosecution case. To assess the credibility of PW1, a reference
to the defence version is also necessary. I hasten to add that it is no
doubt true that the burden is always on the prosecution to establish
the case beyond reasonable doubt. But if the accused takes up a
defence, then he needs to establish the same though the degree of
proof required is not proof beyond reasonable doubt. But, the
accused need only show a preponderance of probabilities.
Therefore, I shall refer to the defence evidence also.
26. DW1, a friend of A1, deposed that on the date of the
incident i.e., on 23.06.2017 at about 08:00 AM, A1 had called him
and asked him to accompany the former for an outing. He asked
A1 to come to his shop situated at Auchandi Road, Bawana. A1
came to his shop at about 09:00 AM and remained there till 01:00-
2:00 PM. Thereafter, he went to his house for lunch and A1 left for
his own house. DW1 deposed that A1 had mentioned on several
occasions that PW1, who frequently played with him, would often
quarrel over issues arising during their games.
26.1 A1 has no such case as deposed by DW1 when PW1
was examined. Not even a suggestion was put to PW1 that on the
relevant day A1 was somewhere else. Even while questioned under
Section 313(1)(b) Cr.P.C., A1 has no such case. Therefore, the
testimony of DW1 does not in any way further the case of A1.
27. DW2, the brother of A2, deposed that on 23.06.2017, he
was at his house as it was his birthday. His father, mother, elder
brother and A2 were also at the house. His brother Navdeep (A2)
remained at their house till 04:00-05:00 PM. On the same day, at
about 08:00-08:30 PM, police officials came to their house to
inquire about A2 and informed them that they were taking A2 to
the Bawana Police Station for inquiry. PW1 used to play archery
with his brother, Navdeep (A2). He was PW1's senior in sports
and PW1 used to ask for money from him. He stopped talking to
PW1 and thereafter, PW1 started talking to his brother Navdeep
(A2). A2 told him that PW1 had taken an amount of ₹1500 from
him. He told his brother to stay away from PW1. Krishan (A1) told
him that PW1 had quarrelled with him and A2 while playing
kabaddi once or twice. In the cross-examination, DW2 admitted
that A2 had never complained regarding the loan of ₹1500/- taken
by PW1 to any person or forum.
27.1 DW2 has developed a new case which even A2 does not
seem to have. PW1 when in the box was never asked regarding the
alleged money transaction between the former and A2. Hence,
DW2 cannot also be believed.
28. Further, according to A1 and A2, the complaint was
lodged by PW1 due to a prior quarrel that occurred between them
during a kabaddi practice session. Both the accused persons have
submitted this version in their statements recorded under Section
313 Cr.P.C., contending that PW1 had falsely implicated them out
of revenge due to the quarrel. In support of this contention, the
defence examined DW3, a fellow kabaddi player, who deposed
that in the months of May-June 2017, a quarrel had occurred
between PW1 and the accused persons regarding playing kabaddi
at the Rajiv Gandhi Stadium. According to DW3, PW1 left the
practice session in anger and said that he would teach the accused
persons a lesson. DW1, in his cross-examination, admitted that he
had never informed the coach about the quarrel in the stadium.
28.1 Here again, A1 and A2 never had such a case when
PW1 was cross examined. According to A1 and A2, they had a
quarrel with PW1. But they never had a case that PW1 had
threatened to teach them a lesson or that the threat had been
overheard by others. On the other hand, from the line of cross-
examination of PW1, their case seems to be that there were several
other players as well as two coaches during the practice sessions;
that there are CCTV cameras in the stadium and therefore the case
of PW1 is improbable. If that be so, the same factors are applicable
to A1 and A2 also. Further, even assuming that there was in fact a
quarrel during a kabbadi practice the same cannot, by itself, be
treated as sufficient to discard the prosecution case. It is still
necessary for A1 and A2 to show that PW1 had a strong motive to
falsely implicate them.
29. Another argument advanced was that A1 and A2 are
national level kabbadi players and so to spoil their chances or
future, the false implication has been made. There is never a case
for A1 and A2 during trial that PW1 due to jealousy and to see that
their future in the game was destroyed had given such a false
complaint.
30. It was further argued that PW10, the IO had manipulated
the biological samples of A1 and A2 and planted evidence at the
instance of PW2, the mother of PW1. PW2 had previously worked
in the MV Hospital and had used her influence there to fabricate
the medical evidence. In support of this version, DW4 was
examined, who deposed that PW2 had worked in the aforesaid
hospital in the security department. Even assuming that PW2 was
employed at the said hospital at the relevant time, it is difficult to
believe that she could have influenced the medical examination or
the preparation of the medical records. Moreover, it appears highly
improbable that the medical experts, namely, PW7 and PW11,
would fabricate or manipulate evidence at the behest of PW2. A1
and A2 have not shown what benefit the doctors would achieve by
falsely implicating them. In the absence of any such reason or
material, the allegation that the evidence was fabricated at the
instance of PW2 appears to be unsustainable.
31. According to the defence, the perianal and anal swabs of
PW1 were taken on 23.06.2017, yet the samples were not
deposited till much later. A1 and A2 were initially treated as
Children in Conflict with Law. Vide order dated 06.09.2017 of the
JJB, A1 and A2 were declared to be major persons. Pursuant to the
same, A1 and A2 were arrested on 27.03.2018 and 13.03.2018,
respectively. Thereafter, their semen was taken and the results
manipulated. As per Ext. PW4/A the FSL report, the DNA found
on the clothes of PW1 matched the DNA of both the accused
persons. This is against the version of PW1 because his case is that
on 23.06.2017, only A2 had committed penetrative sexual assault.
In such circumstances, the DNA traces of A1 could not have been
present in the swabs of PW1 taken on 23.06.2017. This itself,
according to the defence, is sufficient to throw out the prosecution
case.
32. The defence is certainly justified in this argument.
According to PW1, on 23.06.2017, A1 had not committed any act
on him and had remained outside the room. Therefore, the
presence of A1's DNA in the swabs taken from PW1 is certainly
inconsistent with or against the version given by PW1. No
satisfactory explanation has been offered by the prosecution in this
regard. In such circumstances, the argument that the possibility of
manipulation of the case property by the IO is quite justified. But,
for every wrong or illegality committed by the IO the accused is
not liable to be acquitted, if the evidence produced de hors the
defective investigation is sufficient to bring home the guilt of the
accused beyond all reasonable doubt. In such cases, the accused
cannot take any advantage of the defective investigation, unless the
same casts reasonable doubt about the prosecution case. Hema v.
State, (2013) 10 SCC 192. In C. Muniappan v. State of T.N.,
(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402 :Where there has
been negligence on the part of the investigating agency or
omissions, etc. which resulted in defective investigation, there is a
legal obligation on the part of the court to examine the prosecution
evidence dehors such lapses, carefully, to find out whether the said
evidence is reliable or not and to what extent it is reliable and as to
whether such lapses affected the object of finding out the truth.
33. In the case on hand, there appears to be clear dereliction
of duty by the IO. In his anxiety to prove the case, the IO seems to
have manipulated the samples. But, even if Ext. PW4/A FSL
report is discarded or ignored, I find no reason to disbelieve the
consistent testimony of PW1. Though the trial court finds the
testimony of PW1 to be credible and trustworthy, without giving
any reasons, disbelieved the case of abuse that took place before
23.06.2017. A1 and A2 have been convicted only for the offences
contemplated under Section 5(g) of the PoCSO Act and Section
377 IPC. Apparently, A1 and A2 have been acquitted for the
offence punishable under Section 5(l) of the PoCSO Act though
the same is not specifically stated so in the impugned judgment.
Section 5(g) of the PoCSO Act says that whoever commits gang
penetrative sexual assault on a child commits aggravated
penetrative sexual assault. The materials on record show that on
23.06.2017, only A2 committed penetrative sexual assault. But
Explanation to Section 5(g) of the PoCSO Act says when a child is
subjected to sexual assault by one or more persons of a group in
furtherance of their common intention, each of such persons shall
be deemed to have committed gang penetrative sexual assault
within the meaning of this clause and each of such person shall be
liable for that act in the same manner as if it were done by him
alone. Therefore, even if A1 did not commit any penetrative sexual
assault on 23.06.2017, he would still be liable under the
Explanation in the light of the testimony of PW1, that on the
relevant day A1 was waiting outside for his turn when A2 was in
the act of assaulting him. It was only because PW1 started crying
out of pain, A1 left him alone. I have already referred to this aspect
of the testimony of PW1. The conviction of A1 and A2 for the
offence as contemplated under Section 5(g) of the PoCSO Act,
punishable under Section 6 of the PoCSO Act is, therefore, correct.
34. The trial court has found A1 and A2 guilty of the offence
punishable under Section 377 IPC also. Section 377 IPC says that
whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal shall be punished with
imprisonment for life, or with imprisonment of either description
for a term which may extend to ten years and shall also be liable to
fine. In the case on hand, PW1 has consistently deposed that A2
committed anal penetration upon him on 26.03.2017 while A1
facilitated the act by remaining present and acting in concert with
A2.Therefore, the ingredients of the offence punishable under
Section 377 IPC read with Section 34 IPC also stands proved.
35. The trial court has imposed separate sentences under
Section 377 IPC and Section 6 of the PoCSO Act. As per Section
3(a) of the PoCSO Act, a person is said to commit "penetrative
sexual assault" if he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the child to do
so with him or any other person. The act punishable under Section
377 IPC also falls within Section 3(a) of the PoCSO Act. Section
377 IPC is not included in Section 42 of the PoCSO Act. But in the
light of Section 71 IPC and Section 26 of the General Clauses Act,
1897, punishment/sentence can be awarded under one enactment
only. (See Vinod Thankarajan v. State of Kerala, 2019 SCC
OnLine Ker 7769 : 2020 (1) KHC 852, Sheikh Rahman v. State
of Chhattisgarh, 2025 SCC OnLine Chh 7343, Manoj v. State
of Maharashtra, (2023) 2 HCC (Bom) 472 and Lalhlimpuia v.
State of Mizoram, (2025:GAU-MZ:70-D))
36. The trial court has imposed a sentence of rigorous
imprisonment of 15 years for the offence punishable under Section
6 of the PoCSO Act. This could not have been done in the light of
the dictum in Ravinder Singh v. The State Govt. of NCT of
Delhi, (2024) 2 SCC 323. The maximum that could have been
imposed by the trial court was imprisonment for life or for a term
not exceeding 14 years. Furthermore, the appellants/ A1 and
A2were only aged 19-20 years at the time of the incident. Hence in
the said circumstances, I find that the substantive sentence of
rigorous imprisonment for a period of 10 years would serve the
ends of justice.
37. In the result, the appeals are partly allowed. The
conviction of the accused persons for the offences punishable
under Section 377 read with Section 34 IPC and Section 6 of the
PoCSO Act are confirmed. However, the sentence of rigorous
imprisonment for 15 years imposed for the offence punishable
under Section 6 of the PoCSO Act is modified to a period of 10
years.
38. Applications, if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 24, 2026
kd
