Delhi High Court
Prem Shankar@ Raju vs State Of Nct Of Delhi on 23 June, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:23.06.2025
+ CRL.A. 856/2023 & CRL.M.(BAIL) 1426/2023
PREM SHANKAR@ RAJU .....Appellant
versus
STATE OF NCT OF DELHI .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ishaan Kumar, Adv.
For the Respondent : Mr. Aashneet Singh, APP for the State with
SI Rinki, PS SP Badli.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present appeal is filed challenging the judgement of
conviction dated 19.05.2023 (hereafter ‘impugned judgement’) and
order on sentence dated 21.07.2023 (hereafter ‘impugned order on
sentence’) passed by the learned Additional Sessions Judge (‘ASJ’),
(POCSO), Rohini Courts, Delhi,in Sessions Case No. 377/2017arising
out of FIR No. 288/2017 dated 31.03.2017 registered at Samaipur
Badli.
2. The learned ASJ by the impugned judgement, convicted the
appellant for the offences under Section 376 (2)(i) of the Indian Penal
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Code, 1860 (‘IPC‘) and Section 4 of the Protection of Children from
Sexual Offences Act, 2012 (‘POCSO’).
3. By the impugned order on sentence the appellant was sentenced
to undergo rigorous imprisonment for a period of ten years and to pay
a fine of ₹5,000/- for the offence under Section 376 (2)(i) of the IPC,
and in default of payment of fine, to undergo simple imprisonment for
a period of 5 days. The benefit of Section 428 of The Code of Criminal
Procedure, 1973 (‘CrPC‘), has been granted to the appellant.
Brief Facts
4. The FIR No. 288/2017 was registered under Section 363 of the
IPC, based on a complaint dated 31.03.2017given by Sh. ‘L’ claiming
that on 30.03.2017 his minor daughter ‘S’ aged 15 years, had left the
home for school at around 9:45 am and had not returned since.The
victim was recovered with the appellant in Shahupura, Ballabhgarh,
Faridabad, Haryana on 28.04.2017.
5. As per the statement of the victimrecorded by the Police, she
had gone to her school to collect her result on 30.03.217 when the
appellant, who is her maternal uncle’s son, met her at the underpass
and asked her to visit Kalkaji Temple with him after assuring that they
will be back by 2 pm. She stated that they took the metro and went to
Kalkaji whereafter at 2 pm she asked the appellant to drop her but he
kept delaying on one pretext or another. She stated that around 9:30
pm she reached the house of the appellant at Prahaladpur, where he
gave her a cold drink with some stupefying substance, that made her
unconscious. She stated that when she woke up, she was unclothed.
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She stated that the appellant threatened her that if she returned home
her parents will not accept her for being a disgrace to her family. It is
stated that the appellant kept her there for three days, after which, on
03.04.2017 he took her to a rented room in Shahupura and forcibly
made physical relations with her till 24.04.2017, whereafter she was
recovered on 28.04.2017.
6. The minor victim supported the case of the prosecution in her
statement under Section 164 of the CrPC.She was medically examined
at Dr BSA Hospital and the exhibits were collected. The FSL result
revealed presence of semen on the salwar of the victim, the DNA of
which matches that of the appellant.
7. After completion of investigation, chargesheet was filed under
Sections 363/366/376/328 of the IPC and Section 6 of the POCSO
Act.Charges were framed against the appellant for the offences under
Sections 363/366/342/328/506/376(2) (n) of the IPC and Section 6 of
the POCSO Actvide order dated 03.08.2017. However, vide order
dated 16.05.2023, these charges were amended and the offence under
Section 376(2)(i) of the IPC was added to the trial of the appellant.
8. The learned ASJ in the impugned judgement acquitted the
appellant for the offences under Sections
363/366/328/342/506/376(2)(n) of the IPC and Section 6 of the
POCSO Act, on the grounds that the prosecution was not able to prove
the role played by the appellant in the aforesaid offences.It was
observed that the victim had been consistent regarding the fact that she
was subjected to sexual intercourse and that no explanation was given
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by the appellant in regard to how his semen was found on the salwar
of the victimand why she was recovered at his instanceafter she went
missing. It was held that despite the fact that the sexual relationship
between the appellant and the victim appeared to be consensual, the
case would fall under the definition of rape under Section 375 of the
IPC, owing to the fact that the victim was a minor at the time of the
incident. The appellant was convicted under Section 376 (2) (i) of the
IPC and under Section 4 of the POCSO Act.
9. The prosecution cited 20 witnesses in support of its case, out of
which14 witnesses were examined. The said 14 witnesses included the
victim (PW-1), the victim’s mother (PW-4) since the victim’s father
expired before his statement could be recorded,the Doctors at BSA
Hospital (PW-3 and PW-6), the Junior Forensic/ Chemical Examiner
(Biology) (PW-7), the Investigating Officer (PW-14)and other official
witnesses. The prosecution also relied upon, inter alia, the seized
clothes of the victim being Ex. PW1/B, the school record of the victim
and the certificate issued by the Vice Principal of the victim’s school
being Ex. PW2/A to Ex PW2/E, the first and second MLC of the
victim being Ex. PW3/A and Ex. PW6/A respectively, the missing
report registered by the father of the victim being Ex. PW4/A, the FSL
Report being Ex. PW7/A, the roznamcha entries being Ex. PX3 and
Ex. PX4 when the victim was recovered in the company of the
accused, and the medical and exhibits collected from the appellant
being Ex. PX5 and Ex. PW14/C.
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10. The appellant denied the allegations in his statement under
Section 313 of the CrPC and contested that he was being falsely
implicated in the present case.
11. The learned ASJ convicted the appellant of the offences under
Section 376 (2)(i) of the IPC and Section 4 of the POCSO Act, taking
into consideration the documents of the victim from her school
wherein the date of birth of the victim is stated to be 05.10.2001, the
testimony of the prosecution witnesses, especially, the victim and her
mother, the FSL result as well as the recovery of the victim from the
company of the appellant recordedin the roznamcha entries.
12. Learned Counsel for the appellant submitted that there are
material inconsistencies and improvements in the statements of the
victim. He submits that although the victim admitted that she was seen
by the neighbours in Prahladpur and claimed to ask for help from some
woman, however no independent witness from the vicinity was cited
as a witness to corroborate the case of the prosecution.
13. He placed reliance on the judgement passed by the Hon’ble
Apex Court in Rahul v. State (NCT of Delhi):(2023) 1 SCC 83 to
state that the seizure memo of the clothes of the victim does not bear
any date and that there is an unexplained delay in depositing the sealed
parcels to FSL and therefore the prosecution had missed an important
link. He argued that even otherwise the scientific evidence is not the
proof of the culpability of the appellant when the same fails to
corroborate with other evidence. [Ref: Harbeer Singh v. Sheeshpal :
(2016) 16 SCC 418]
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14. He submitted thatthe learned ASJ erred in not granting benefit
of doubt to the appellant and convicting him mechanically without
appreciating that the prosecution has been unable to establish its case
beyond reasonable doubt and that the burden of the same is not upon
the appellant to have proved his innocence beyond reasonable doubt.
15. Per contra, the learned Additional Public Prosecutor for
theState vehemently contested that the testimonies of the witnesses
including that of the minor victim, had supported the case of the
prosecution and the same alone is sufficient to confirm the conviction
of the accused. He submitted that the school record of the victim
clearly reveals that the victim was 15 year of age at the time of the
incident and therefore the learned ASJ has rightly passed the impugned
judgement convicting the appellant for the offences under Section 376
(2)(i) of the IPC and Section 4 of thePOCSO Act.
Analysis
16. At the outset, it is relevant to note that while dealing with an
appeal against judgment on conviction and sentence, in exercise of
Appellate Jurisdiction, this Court is required to reappreciate the
evidence in its entirety and apply its mind independently to the
material on record. The Hon’ble Apex Court in the case of Jogi & Ors.
v. The State of Madhya Pradesh :Criminal Appeal No. 1350/2021
had considered the scope of the High Court’s appellate jurisdiction
under Section 374 of the CrPC and held as under:
“9. The High Court was dealing with a substantive appeal under the
provisions of Section 374 of the Code of Criminal Procedure 1973. In
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to evaluate the evidence on the record independently and to arrive at
its own findings as regards the culpability or otherwise of the accused
on the basis of the evidentiary material. As the judgment of the High
Court indicates, save and except for one sentence, which has been
extracted above, there has been virtually no independent evaluation of
the evidence on the record. While considering the criminal appeal
under Section 374(2) of CrPC, the High Court was duty bound to
consider the entirety of the evidence. The nature of the jurisdiction has
been dealt with in a judgment of this Court in Majjal v State of
Haryaya [(2013) 6 SCC 799] , where the Court held:
‘6. In this case what strikes us is the cryptic nature of the High
Court’s observations on the merits of the case. The High Court
has set out the facts in detail. It has mentioned the names and
numbers of the prosecution witnesses. Particulars of all
documents produced in the court along with their exhibit
numbers have been mentioned. Gist of the trial court’s
observations and findings are set out in a long paragraph. Then
there is a reference to the arguments advanced by the counsel.
Thereafter, without any proper analysis of the evidence almost
in a summary way the High Court has dismissed the appeal. The
High Court’s cryptic reasoning is contained in two short
paragraphs. We find such disposal of a criminal appeal by the
High Court particularly in a case involving charge under
Section 302 IPC where the accused is sentenced to life
imprisonment unsatisfactory.
7. It was necessary for the High Court to consider whether the
trial court’s assessment of the evidence and its opinion that the
appellant must be convicted deserve to be confirmed. This
exercise is necessary because the personal liberty of an
accused is curtailed because of the conviction. The High Court
must state its reasons why it is accepting the evidence on
record. The High Court’s acceptable only if it is supported by
reasons. In such appeals it is a court of first appeal. Reasons
cannot be cryptic. By this, we do not mean that the High Court
is expected to write an unduly long treatise. The judgment may
be short but must reflect proper application of mind to vital
evidence and important submissions which go to the root of the
matter. Since this exercise is not conducted by the High Court,
the appeal deserves to be remanded for a fresh hearing after
setting aside the impugned order.’ ”
(emphasis supplied)
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17. In the present case, the allegations levelled against the appellant
are serious in nature. It is the case of the prosecution that the appellant
sexually assaulted the victim, who was 15 years old at the time of the
incident.
18. It is relevant to note that the appellant has been convicted for the
offence under Section 4 of thePOCSO Act and Section 376(2)(i) of
IPC.
19. Section 4 of POCSO Act prescribes the punishment for
penetrative sexual assault and attracts the presumption under Section
29 of the POCSO Act. The same reads as under:
“29. Presumption as to certain offences.–Where a person is
prosecuted for committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be unless the
contrary is proved.”
20. It is trite law that the said presumption only comes into play
once the prosecution is able to establish foundational facts and it can
be rebutted by placing evidence or by discrediting the witnesses
through cross-examination as well. [Ref. Altaf Ahmed v. State
(GNCTD of Delhi): 2020 SCC OnLine Del 1938]
21. In the present case, the prosecution has sought to establish its
case essentially through the evidence of the victim as well as scientific
evidence.
22. It is imperative to peruse the statements tendered by the
witnesses. In the complaint it was stated that the minor daughter of the
complainant/ father of the victim, had gone to the school on
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30.03.2017 and had not returned since. When the victim was recovered
at the instance of the appellant, she stated to the Police that the
appellant is her maternal uncle’s son, who had met her on 30.03.2017,
when she had left her house to go to the school to collect her result.
She stated that the appellant took her to Kalkaji Temple and thereafter
he refused to drop her back to her house and instead took her to his
house in Prahladpur, where he gave her some stupefying substance in a
drink which made her unconscious. She stated that she woke up
without any clothes on. She stated that the appellant threatened her that
now she will not be in a position to go to her house as her parents will
not accept her. She stated that the appellant thereafter took her to
Shahupura where he used to lock her and do inappropriate acts with
her. She stated that the last incident had taken place on 24.04.2017.
23. In her statement under Section 164 of the CrPC, the victim
stated that when she was going to her school, she met the appellant
who asked her to go with him to Kalkaji Mandir as he had informed
her mother, believing which she left with him to Lotus Temple. She
stated that after spending time there, the appellant took her to
Prahladpur, where he gave her a cold drink which made her
unconscious and when she woke up she did not have a single piece of
cloth on her. She stated that she was kept in Prahladpur for three days
whereafter the appellant took her to Shahupura and forcefully kept her
there in a rented room.
24. During her examination on 28.11.2017, the victim
(PW1)supported the case of the prosecution. She deposed that the
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appellant took her to Kalkaji on 30.03.2017 when she was returning
from school after collecting her result. She stated that the appellant
kept avoiding her request to drop her back home and later at night he
took her to his house where he made her drink a cold drink, which
made her unconscious and when she woke up she found herself
disrobed. She stated that the appellant kept her there for three days,
after which on 03.04.2017, he took her to Shahupura and forcefully
kept her there for almost a month, till she was recovered on
28.04.2017. She further added that the appellant had sexually assaulted
her about 3-4 times in that duration.
25. PW4 is the mother of the victim, who identified the missing
report being Ex. PW4/A registered by her husband, as he had passed
away before his examination. She identified the thumb print of her late
husband, given on the application for medically examining the victim
for the second time being Ex. PW4/B.
26. PW14 is the Investigating Officer who deposed about the
recovery of the victim at the instance of the appellant as well as his
arrest. He deposed that the victim was identified with the help of a
photograph provided by her parents.He further deposed regarding the
medical examination of the victim and registration of FIR. He stated
that the age of the minor victim was confirmed upon collection of
documents from school records, in which her date of birth is
05.10.2001 (Ex. PW2/A to Ex PW2/E).
27. In the cross-examination of PW1 and PW4, the appellant
suggested that the present case has been filed on account of previous
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monetary dispute with the victim’s parents. It was observed that no
evidence was led by the appellant in regard to the claim that there was
previous monetary dispute with the victim’s parents and therefore he
failed to discharge the burden under Section 29 of the POCSO Act.
28. Even if it is assumed, for the sake of arguments, that the parents
of the victim had a monetary dispute with the appellant, it is also
relevant to note that the victim in the present case was a minor girl at
the time of the incident. In such circumstances it is difficult to fathom
as to why the parents would instigate their minor girl child to falsely
allege commission of such grave offenceupon her, which may cause
serious repercussions to her life, image and mental state.
29. The learned ASJ while acquitting the appellant for the offences
under Sections 363/366/328/342/506/376(2)(n) of the IPC and Section
6 of the POCSO Act, noted the inconsistencies in the statement of the
victim. It was observed that the victim admitted during her cross-
examination that the neighbors in Prahladpur had seen her go in and
out the house along with the appellant and were aware of the fact that
she was his cousin. The applicant being forcefully kept by the
appellant for three days, without having raised any alarm to the
neighbors was highly improbable in the opinion of the learned ASJ. It
was noted that the while the victim claimed that she did not have
access to her phone, it was revealed that the phone of the victim was
active and that the victim was in touch with her friend, who shared the
details with the victim’s father, which led to her recovery. It was also
noted that the victim had improvised her testimony in regard to
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receiving death threats by the appellant, whereas in her statement to
the Police, she had stated that she did not return home as her family
would not accept her. Moreover, contrary to her claims she did not
testify that she was raped by the appellant in Shahupura, and that even
in her medical examination she only mentioned a single occasion of
sexual assault by the appellant in Prahladpur and not repeated acts of
sexual assault, as claimed by her.
30. Even though there are inconsistencies in the statement of the
victim, as noted above, which make it apparent that the victim had
willingly accompanied the appellant and shared consensual relations
with him, however, unequivocally the victim was a minor at the time
of the commission of the offence and her consent is irrelevant.
31. The FSL result being Ex. PW7/A reveals that semen was
detected on the salwar of the victim and the DNA matches that of the
accused. The said salwar has been duly identified by the victim as well
as the mother of the victim. Moreover, PW 7 being the Forensic/
Chemical Examiner, has deposed that the DNA profiling performed on
the two exhibits, i.e., blood sample of accused, which was collected
from Dr. BSA Hospital during his examination, and salwar of victim
collected on the day of her recovery, are sufficient to conclude that
biological stains present on the salwar of the victim matches the DNA
present in the blood sample.
32. In this regard, the entire statement of the minor victim cannot be
disregarded in view of minor inconsistencies. The only relevant aspect
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in the present case is that the appellant established sexual relations
with the victim who was a minor at the time.
33. Inconsistencies in the evidence does not come in defence of the
appellant in view of the established facts that the victim was a minor at
the time of the incident, the appellant’s semen was found present on
the salwar of the victim and the fact that she was recovered at his
instance after almost a month of her disappearance. Minor
discrepancies in relation to the statements made by the victim, though
duly noted, are not such that cast a doubt over the charge under
Section 376(2)(i) of the IPC. The said factor has to be established by
showing motive for false implication, which the defence has failed to
show in the present case, as noted above.
34. On careful examination, victim’s statements are consistent on
the point that the appellant took her to Kalkaji and she stayed with her
and established sexual relations. She further stated that the appellant
kept her there for three days whereafter he took her to Shahupura and
kept her there, till she was recovered by the Police on 28.04.2017. As
already discussed above, the minor inconsistencies in the statement of
the victim does not outrightly disregard her entire statement. The
statement still inspires confidence for the purpose of ascertaining that
sexual relations was in fact established between the appellant and the
victim.
35. The age of the victim has not been challenged by the appellant
in the present case. It has been argued on behalf of the appellant that
the victim’s evidence suffers from material improvements and the
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same does not inspire confidence. It has been argued that there are also
contradictions between the evidence of the victim given before the
police and before the learned Court and no independent witness had
been produced by the prosecution to corroborate the statement of the
victim.
36. It is trite law that the accused can be convicted solely on the
basis of evidence of the complainant / victim as long as same inspires
confidence and corroboration is not necessary for the same. The law
on this aspect was discussed in detail by the Hon’ble Apex Court by
Nirmal Premkumar v. State : 2024 SCC OnLine SC 260. The
relevant portion of the same is produced hereunder:
“11. Law is well settled that generally speaking, oral testimony may
be classified into three categories, viz.: (i) wholly reliable; (ii) wholly
unreliable; (iii) neither wholly reliable nor wholly unreliable. The
first two category of cases may not pose serious difficulty for the
Court in arriving at its conclusion(s). However, in the third category
of cases, the Court has to be circumspect and look for corroboration
of any material particulars by reliable testimony, direct or
circumstantial, as a requirement of the rule of prudence.
12. In Ganesan v. State4 , this Court held that the sole testimony of the
victim, if found reliable and trustworthy, requires no corroboration
and may be sufficient to invite conviction of the accused.
13. This Court was tasked to adjudicate a matter involving gang rape
allegations under section 376(2)(g), I.P.C in Rai Sandeep v. State
(NCT of Delhi)5 . The Court found totally conflicting versions of the
prosecutrix, from what was stated in the complaint and what was
deposed before Court, resulting in material inconsistencies. Reversing
the conviction and holding that the prosecutrix cannot be held to be a
‘sterling witness’, the Court opined as under:
“22. In our considered opinion, the ‘sterling witness’ should be
of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and whatSignature Not Verified
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would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the
end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the
cross- examination of any length and howsoever strenuous it
may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have co-
relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the chain
of circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
‘sterling witness’ whose version can be accepted by the court
without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on
the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the court trying the offence to rely
on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
(underlining ours, for emphasis)
14. In Krishan Kumar Malik v. State of Haryana6 , this Court laid
down that although the victim’s solitary evidence in matters related to
sexual offences is generally deemed sufficient to hold an accused
guilty, the conviction cannot be sustained if the prosecutrix’s testimony
is found unreliable and insufficient due to identified flaws and
lacunae. It was held thus:
“31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires confidence
and appears to be absolutely trustworthy, unblemished andSignature Not Verified
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should be of sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae, which
have already been projected hereinabove, would go to show that
her evidence does not fall in that category and cannot be relied
upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement
(CrPC), FIR and deposition in court. Thus, it was necessary to
get her evidence corroborated independently, which they could
have done either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of her alleged
abduction. The record shows that Bimla Devi though cited as a
witness was not examined and later given up by the public
prosecutor on the ground that she has been won over by the
appellant.”
15. What flows from the aforesaid decisions is that in cases where
witnesses are neither wholly reliable nor wholly unreliable, the
Court should strive to find out the true genesis of the incident. The
Court can rely on the victim as a “sterling witness” without further
corroboration, but the quality and credibility must be exceptionally
high.The statement of the prosecutrix ought to be consistent from
the beginning to the end (minor inconsistences excepted), from the
initial statement to the oral testimony, without creating any doubt
qua the prosecution’s case. While a victim’s testimony is usually
enough for sexual offence cases, an unreliable or insufficient
account from the prosecutrix, marked by identified flaws and gaps,
could make it difficult for a conviction to be recorded.”
(emphasis supplied)
37. The argument of the appellant that the seizure memo of the
clothes of the victim does not bear any date and that there is an
unexplained delay in depositing the sealed parcels to FSL, does not
warrant any adverse infernce. The entry of three different sets of
articles being, biological samples of the accused, clothes of the victim
and personal search articles of the accused were made in Entry bearing
No. 4896/2017 dated 28.04.2017. It is also rightly noted by the learned
ASJ that the movement of these exhibits in a sealed condition, from
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the IOs to the malkhana and then to the FSL has been duly proved
through PW12, PW14, PW10, PW8 and PW13.
38. Furthermore, the learned ASJ has already dealt with a similar
argument of the appellant that the same entry for the three articles
reflects that the clothes of the victim had not been deposited in the
malkhana on 28.04.2017 and the same were deliberately included in
the same entry later on. The learned ASJ rightly considered the
explanation given by the PW13 that separate serial numbers were not
given to the pullandas received by him at different times of the day on
28.04.2017 because all pullandas were pertaining to the same FIR and
even the perusal of the entries does not reflect any suspicious
modification and the same appear to be enumerated in sequence.
39. The learned ASJ rightly determined that, although the sexual
relationship between the appellant and the victim appeared to be
consensual, the case would nevertheless be classified as rape since the
victim was a minor at the time of the incident. The Hon’ble Apex
Court in Satish Kumar Jayanti Lal Dabgar v. State of Gujarat :
(2015) 7 SCC 359, refused to even consider the consent of the minor
as a mitigating circumstance in the case. The Hon’ble Court affirmed
the legal protection provided to minors under the IPC and while
reinforcing the seriousness of the approach ought to be taken by the
judiciary in cases of sexual offences against minors, also set a
precedent for the sanctity of consent. It was held as under:
11. …Believing in the authenticity of these documents, the trial court
concluded that as per Ext. 40 read with Ext. 26, the date of birth of the
prosecutrix was 28-9-1988 and entry to this effect was made in theSignature Not Verified
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register on 1-10-1988 which clearly evinced that the prosecutrix was less
than 16 years of age (in fact even less than 15 years) on 1-9-1993 when
she was taken away by the appellant. Having regard to her age, the trial
court concluded that it was a case of kidnapping as her consent was
immaterial inasmuch as being a minor she was not capable of giving
any consent at that age. Likewise, since sexual intercourse had been
virtually admitted and proved as well by medical evidence, the same
would clearly amount to rape. Apart from the admission of the accused
himself, the factum of sexual intercourse was proved by medical
examination and Dr Raj Kamal, who had examined the victim as well as
the accused, had deposed to this effect.
xxxx xxxx xxxx
14. The first thing which is to be borne in mind is that the prosecutrix
was less than 16 years of age. On this fact, clause sixthly of Section 375
IPC would get attracted making her consent for sexual intercourse as
immaterial and inconsequential. It reads as follows:
“375. Rape.–A man is said to commit ‘rape’ who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions–
***
Sixthly.–With or without her consent, when she is under sixteen years of
age.
Explanation.–Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.”
15. The legislature has introduced the aforesaid provision with sound
rationale and there is an important objective behind such a provision. It
is considered that a minor is incapable of thinking rationally and giving
any consent. For this reason, whether it is civil law or criminal law, the
consent of a minor is not treated as valid consent. Here the provision is
concerning a girl child who is not only minor but less than 16 years of
age. A minor girl can be easily lured into giving consent for such an act
without understanding the implications thereof. Such a consent,
therefore, is treated as not an informed consent given after
understanding the pros and cons as well as consequences of the
intended action. Therefore, as a necessary corollary, duty is cast on the
other person in not taking advantage of the so-called consent given by a
girl who is less than 16 years of age. Even when there is a consent of a
girl below 16 years, the other partner in the sexual act is treated as
criminal who has committed the offence of rape. The law leaves no
choice to him and he cannot plead that the act was consensual. A
fortiori, the so-called consent of the prosecutrix below 16 years of age
cannot be treated as mitigating circumstance.
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16. Once we put the things in right perspective in the manner stated
above, we have to treat it as a case where the appellant has committed
rape of a minor girl which is regarded as a heinous crime. Such an act of
sexual assault has to be abhorred. If the consent of minor is treated as a
mitigating circumstance, it may lead to disastrous consequences. This
view of ours gets strengthened when we keep in mind the letter and spirit
behind the Protection of Children from Sexual Offences Act, 2012.”
(emphasis supplied)
40. Pertinently, the age of the victim has not been challenged by the
appellant. The appellant was consequently convicted under Section
376(2)(i) of the IPC and Section 4 of the POCSO Act.
41. In view of the same, the testimony of the witnesses and the
evidence led by the prosecution, inspires confidence and the appellant
has been unable to show that the version of the victim that the
appellant had sexual intercourse with her in Prahladpur, is false. In
such circumstances, the foundational facts stand proved by the
prosecution through the evidence of the victim and other witnesses as
well as scientific evidence, and the appellant has not been able to
create any doubt to rebut the presumption under Section 29 of the
POCSO Act.
42. Insofar as the sentence of the appellant is concerned, in
theopinion of this Court, the learned ASJ has already taken into
account the mitigating circumstances in favour of the appellant, such
as being a young boy of 20 years of age and a first time offender,
however, the seriousness of the offence cannot be ignored. The
appellant was sentenced toundergo the minimum period of sentence of
ten years under Section 376 (2) (i) of the IPC. This Court finds the
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quantum of sentence to be proportional with the crime as has been
committed by the appellant.
43. In view of the aforesaid discussion, this Court finds no reason to
interfere with the impugned judgment and order on sentence.
44. The appeal is dismissed in the aforesaid terms. Pending
application stands disposed of.
AMIT MAHAJAN, J
JUNE 23, 2025
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