Delhi High Court
Faisal vs State Of Nct Of Delhi And Anr on 6 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 04.08.2025
Pronounced on : 06.08.2025
+ CRL.A. 815/2024
FAISAL .....Appellant
Through: Mr. Sunil Chaudhary, Advocate.
versus
STATE OF NCT OF DELHI AND ANR. .....Respondents
Through: Ms. Shubhi Gupta, APP for State with
SI Shivali and SI Anita, P.S. Keshav
Puram.
Ms. Gayatri Nandwani, Ms. Mudita
Sharda and Mr. Adrian Abbi,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal filed under Section 415(2) r/w Section 424 of
BNSS, 2023 has been instituted seeking to assail judgment dated 24.02.2024
and order of sentence dated 09.05.2024 in Sessions Case No. 265/2021
arising out of FIR No. 50/2021 registered under Sections 376/506 IPC &
Section 6 POCSO Act at P.S. Keshav Puram , Delhi.
Vide the impugned judgment and order on sentence, the appellant was
convicted for the offences punishable under Sections 5(j)(ii) &(l) punishable
under Section 6 of the POCSO Act and for the offences under Sections
376(2)(n)/376(3)/506 IPC and he was sentenced to undergo rigorous
imprisonment RI for 20 years in addition to the payment of fine of
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Rs.5,000/- and in default of payment of fine, he was directed to undergo
simple imprisonment for 1 month for each of the abovementioned
convictions. Additionally, he was also convicted under Section 506 IPC and
sentenced to undergo RI for 2 years in addition to the payment of fine of Rs.
1,000/- and in default of payment of fine, he was directed to undergo simple
imprisonment for 15 days. All sentences were directed to run concurrently.
The benefit of Section 428 Cr.P.C. was also extended to the appellant.
2. The brief facts of the case as noted by the Trial Court in the impugned
judgment are as under :
“In brief, as per charge-sheet, information regarding DD no.
6A dated 07.02.2021 was received by the IO. On receiving the
information, she reached Lok Nayak hospital. There she met SI
Sukhbir and NGO counselor Ms. Ranju. There SI Sukhbir
produced MLC No. 113949719 CR. No. 863141 dated
07/02/2021 of victim N D/o Late JPS to her. At 11:12 AM, the
victim gave birth to a female child. In MLC the doctor had
given history of sexual intercourse 2-3 times, 8-9 months back.
After some hours of delivery when the victim was in good
condition, IO recorded statement of victim in presence of NGO
counselor. In her statement, victim stated that, “that from last
about one year, she is residing with her mausi ‘N’ and mausa
‘MS’. Her sister and her husband were also residing with them
on rent. Her parents had died in her childhood. She has studied
up to 8th standard. Near about one year ago, she went to Jahaj
Park to ride on swings. There she met one girl namely ‘SU’ and
they became friends. After about 10-15 days, her friend ‘SU’
took the victim to Jahaj park and got met with accused Faisal
and said that you both also become friends. Thereafter, they all
three roam around in the park. Next week ‘SU’ told her in her
street that today is Sunday and today the accused Faisal would
come to the park. She asked her to go to the park to meet
Faisal. She also told that accused Faisal does the work of
electrician. Thereafter, she went to the park to meet accused
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holiday and further asked her to roam around. Thereafter,
accused Faisal took her to another park in auto. There he
scolded her and threatened her to kill. Thereafter, he made
sexual relations with her and told her that he loves her and he
would solemnize marriage with her. Then he said that he would
meet her next week. He asked her to meet him in said park on
Sunday. She was frightened. Due to fear, she did not tell to
anyone and again went to the park. Accused Faisal again made
sexual relations with her in said park. Accused Faisal did this
act 2-3 times. Thereafter, accused Faisal met her in said park
on Sunday and again told her that he would solemnize marriage
with her. But thereafter, for about 8 months he did not meet her.
She did not know that she is pregnant. On 06.02.2021, she felt
some pain in her stomach. On 07.02.2021 at about 4:00 AM,
her sister P and mausi ‘N’ took her to LNJP hospital and get her
admitted in the hospital. There she came to know that she is
pregnant. She gave birth to a female child on 07.02.2021 at
11:12 AM. Thereafter, FIR was registered for offences under
Section 376/506 IPC and under Section 6 of the Protection of
Children from Sexual Act 2012 (hereinafter referred as POCSO
Act). The matter was investigated. Statement under Section 161
Cr.PC and 164 Cr.PC of witnesses were recorded. The victim
had reiterated the allegation in her statement recorded under
Section 164 Cr. PC. Accused was arrested. The scientific
evidences were also collected. After completion of investigation,
charge sheet was filed for under Section 376/506 IPC and
under Section 6 of POCSO Act.”
3. The charge was framed under Section 5(j)(ii) &(l) of POCSO Act
punishable under Section 6 of the POCSO Act and in the alternative under
Sections 376(2)(n)/376(3)/506 IPC to which the appellant pleaded not guilty
and claimed trial. In trial, the prosecution examined a total of 13 witnesses.
The child victim was examined as PW1. To establish the age of the child
victim, the prosecution examined the sister of the child victim as PW12. The
prosecution also examined the Principal of the school where the child victim
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has studied, as PW4 and one Ms. „P‟, who had exhibited the original record
and certificate issued by her on the letter head of the school, as PW13. As
the parents of the child victim had already passed away, her aunt and uncle
with whom the child victim was residing at the time of the incident, were
examined as PW5 and PW6 respectively. The prosecution also examined Dr.
Reetu Yadav, Sr. Resident, LNJP Hospital as PW10 who proved the MLC of
the child victim and Dr. Ruchi, Assistant Professor, Department of Forensic
Science, Himachal Pradesh University, Shimla, HP who proved the DNA
examination report was examined as PW9.
4. The judgment is assailed on the ground that the testimony of the child
victim does not inspire confidence as a reading of the same would show that
though the victim stated that she used to play in the nearby park where she
befriended one girl namely „SU‟, who introduced her to the appellant,
however, the said girl „SU‟ was not even cited as a prosecution witness.
Further, though the child victim had deposed that she met the appellant
couple of times, however, she admitted in her cross-examination that no
contact details of each other were shared between them. It is also contended
that though the prosecution relied on the site plan Ex. PW1/B, the same
cannot be the place of incident as the child victim had stated in her earlier
statements that the accused took her to another park, the location of which
she was not aware of. It is further contended that there are material
inconsistencies and improvements in the testimony of the child victim,
which make her testimony unreliable. Lastly, it is contended that the age of
the child victim has not been conclusively established by the prosecution.
5. Learned APP, who is duly assisted by the learned counsel for the
child victim appointed by DHCLSC, defended the impugned judgment and
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contended that testimony of the child victim is credible and reliable as the
appellant did not even confront the victim with her statements recorded
under Section 161 and 164 CrPC.
6. I have heard the learned counsels for the parties and perused the Trial
Court record.
7. As per the case of the prosecution, at the time of incident, the child
victim was about 15 years of age, her date of birth being 15.07.2004. The
child victim was examined on 31.05.2022 when her age was recorded as 17
years. She stated that the incident had occurred two years prior to recording
of the deposition. Prosecution had examined the principal of the first
attended school where the child victim had studied, as PW4 who deposed
that child victim was admitted in the school in nursery on 20.07.2009 vide
Entry No. 1613. As per the school record, the date of birth of the child
victim was recorded as 15.07.2004. Relevant pages of the Admission and
Withdrawal Register were exhibited as Ex. PW4/A and Admission Form as
PW4/B and PW4/C. The admission was done on the basis of the sworn
affidavit furnished by the mother of the child victim in the year 2009, which
was exhibited as Ex.PW4/D.
8. A perusal of the testimony of the child victim would show that during
her cross-examination, no suggestion was put to her on the aspect of her age.
Moreover, no such suggestion was given either to her elder sister (PW12) or
to the uncle (PW6) and aunt (PW5). In absence of any doubt raised during
the trial, the Trial Court rightly held that the victim was minor being 15
years of age at the time of the incident.
9. The testimony of the child victim has also remained un-shattered on
the aspect of identification of appellant as the perpetrator of the crime as she
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categorically stated that when the appellant had called her to the park 2/3
times, he forcibly established relations and did “galat kaam”. She clarified
that by “galat kaam” she meant establishment of physical relations. She
further deposed that after some time she used to have stomach pain and
when she informed about the same to her aunt, she was taken to a hospital,
where she became aware of her pregnancy. In the hospital, she gave birth to
a girl child. Pertinently, the Trial Court noted the demeanour of the child
victim as she constantly cried during her cross-examination. In her cross-
examination, she admitted that the offence was committed by the appellant
in the park but she clarified that there was also some forest cover.
10. The prosecution had proved the DNA Forensic Report through Dr.
Ruchi, who was examined as PW9. The witness had conducted the
biological and DNA examination in the present case and as per the results of
the examination, one set of alleles from the blood sample of victim and one
set of alleles from the blood sample of the appellant were accounted in the
blood sample of the baby. The witness further deposed that on the basis of
DNA profiling, she had concluded that the victim is the biological mother of
the baby and appellant is the biological father. Notably, proceedings relating
to the discharge summary of the baby, discharge summary of the victim as
well as potency test and MLC of the accused, were not in dispute and their
formal proof was dispensed with as recorded by the Trial Court in the order
dated 13.05.2022.
11. The competence of a child witness and the evaluation of their
testimony by the Court has been the subject matter of many decisions. In a
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recent decision of State of Madhya Pradesh vs. Balveer Singh1, the Supreme
Court has examined the principles governing the testimony of a child-
witness and summarized the legal position in the following manner :
“58. We summarize our conclusion as under:–
(I) The Evidence Act does not prescribe any minimum age for a witness, and as
such a child witness is a competent witness and his or her evidence and cannot be
rejected outrightly.
(II) As per Section 118 of the Evidence Act, before the evidence of the child
witness is recorded, a preliminary examination must be conducted by the Trial
Court to ascertain if the child-witness is capable of understanding sanctity of
giving evidence and the import of the questions that are being put to him.
(III) Before the evidence of the child witness is recorded, the Trial Court must
record its opinion and satisfaction that the child witness understands the duty of
speaking the truth and must clearly state why he is of such opinion.
(IV) The questions put to the child in the course of the preliminary examination
and the demeanour of the child and their ability to respond to questions
coherently and rationally must be recorded by the Trial Court. The correctness of
the opinion formed by the Trial Court as to why it is satisfied that the child
witness was capable of giving evidence may be gone into by the appellate court
by either scrutinizing the preliminary examination conducted by the Trial Court,
or from the testimony of the child witness or the demeanour of the child during
the deposition and cross-examination as recorded by the Trial Court.
(V) The testimony of a child witness who is found to be competent to depose i.e.,
capable of understanding the questions put to it and able to give coherent and
rational answers would be admissible in evidence.
(VI) The Trial Court must also record the demeanour of the child witness during
the course of its deposition and cross-examination and whether the evidence of
such child witness is his voluntary expression and not borne out of the influence
of others.
(VII) There is no requirement or condition that the evidence of a child witness
must be corroborated before it can be considered. A child witness who exhibits
the demeanour of any other competent witness and whose evidence inspires
confidence can be relied upon without any need for corroboration and can form
the sole basis for conviction. If the evidence of the child explains the relevant
events of the crime without improvements or embellishments, the same does not1
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require any corroboration whatsoever.
(VIII) Corroboration of the evidence of the child witness may be insisted upon by
the courts as measure of caution and prudence where the evidence of the child is
found to be either tutored or riddled with material discrepancies or
contradictions. There is no hard and fast rule when such corroboration would be
desirous or required, and would depend upon the peculiar facts and
circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they are pliable
and liable to be influenced easily, shaped and moulded and as such the courts
must rule out the possibility of tutoring. If the courts after a careful scrutiny, find
that there is neither any tutoring nor any attempt to use the child witness for
ulterior purposes by the prosecution, then the courts must rely on the confidence-
inspiring testimony of such a witness in determining the guilt or innocence of the
accused. In the absence of any allegations by the accused in this regard, an
inference as to whether the child has been tutored or not, can be drawn from the
contents of his deposition.
(X) The evidence of a child witness is considered tutored if their testimony is
shaped or influenced at the instance of someone else or is otherwise fabricated.
Where there has been any tutoring of a witness, the same may possibly produce
two broad effects in their testimony; (i) improvisation or (ii) fabrication.
(i) Improvisation in testimony whereby facts have been altered or new details are
added inconsistent with the version of events not previously stated must be
eradicated by first confronting the witness with that part of its previous statement
that omits or contradicts the improvisation by bringing it to its notice and giving
the witness an opportunity to either admit or deny the omission or contradiction.
If such omission or contradiction is admitted there is no further need to prove the
contradiction. If the witness denies the omission or contradiction the same has to
be proved in the deposition of the investigating officer by proving that part of
police statement of the witness in question. Only thereafter, may the
improvisation be discarded from evidence or such omission or contradiction be
relied upon as evidence in terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to be doctored or
tutored in toto, then such evidence may be discarded as unreliable only if the
presence of the following two factors have to be established being as under:–
• Opportunity of Tutoring of the Child Witness in question whereby
certain foundational facts suggesting or demonstrating the probability
that a part of the testimony of the witness might have been tutored have to
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witness was doubtful, or by imputing any motive on the part of such
witness to depose falsely, or the susceptibility of such witness in falling
prey to tutoring. However, a mere bald assertion that there is a possibility
of the witness in question being tutored is not sufficient.
• Reasonable likelihood of tutoring wherein the foundational facts
suggesting a possibility of tutoring as established have to be further
proven or cogently substantiated. This may be done by leading evidence to
prove a strong and palpable motive to depose falsely, or by establishing
that the delay in recording the statement is not only unexplained but
indicative and suggestive of some unfair practice or by proving that the
witness fell prey to tutoring and was influenced by someone else either by
cross-examining such witness at length that leads to either material
discrepancies or contradictions, or exposes a doubtful demeanour of such
witness rife with sterile repetition and confidence lacking testimony, or
through such degree of incompatibility of the version of the witness with
the other material on record and attending circumstances that negates
their presence as unnatural.
(XI) Merely because a child witness is found to be repeating certain parts of what
somebody asked her to say is no reason to discard her testimony as tutored, if it is
found that what is in substance being deposed by the child witness is something
that he or she had actually witnessed. A child witness who has withstood his or
her cross-examination at length and able to describe the scenario implicating the
accused in detail as the author of crime, then minor discrepancies or parts of
coached deposition that have crept in will not by itself affect the credibility of
such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be relied upon,
if the tutored part can be separated from the untutored part, in case such
remaining untutored or untainted part inspires confidence. The untutored part of
the evidence of the child witness can be believed and taken into consideration or
the purpose of corroboration as in the case of a hostile witness.”
12. Though, the testimony of the sister, uncle and aunt of the child victim
are hearsay, the testimony of the child victim being consistent, credible and
reliable, is sufficient to uphold the impugned judgment. As noted above, the
testimony also finds corroboration from the biological and DNA
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examination report. The child victim had stated that the offence was
repeated 2/3 times. In view of above clinching evidence, the contention
relating to non-examination of girl „Su‟ or doubt on the place of incident,
pales into insignificance. As noted above, the child victim was not even
confronted with her earlier statements made during investigation and no
inconsistency or contradiction or improvement was suggested.
13. No other contention having been raised, I find no merit in the appeal.
Consequently, the appeal is dismissed and the impugned judgment and
conviction are upheld.
14. Copy of the judgment be communicated to the Trial Court, as well as
concerned Jail Superintendent for information and necessary compliance.
MANOJ KUMAR OHRI
(JUDGE)
AUGUST 06, 2025
ga
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