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Delhi High Court
Pawan Kumar vs State Nct Of Delhi on 14 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07.08.2025
% Pronounced on: 14.08.2025
+ CRL.A. 946/2023
PAWAN .....Appellant
Through: Mr. Sunil Choudhary and Mr. Lalit
Kumar, Advocate from DHCLSC.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Pradeep Gahalot, APP for State.
Ms. Cauveri Birbal, Ms. Nistha Dhal,
Ms. Preksha Gaur and Mr. Kamlendu
Panday, Advocates for Victim.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal filed under Section 374(2) read with Section 482
Cr.P.C., has been instituted assailing the order of conviction dated
02.08.2023 vide which he has been convicted for offences punishable under
342/365/506/376 of IPC and Section 4 of the POCSO Act and order of
sentence dated 15.09.2023 in Sessions Case No. 55/2018 arising out of FIR
No.355/2017 registered under Sections 367/376/506/342 IPC & Section 6 of
POCSO Act at P.S. Khyala.
Vide order on sentence, while granting benefit of Section 428 CrPC,
the appellant was sentenced to undergo:
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ASWAL
(i) Rigorous Imprisonment (RI) for 20 years with a fine of
Rs.5,000/- for the offence under Section 376(2)(i) IPC, in case of
default to pay fine, he shall undergo Simple Imprisonment (SI) for 5
Months;
(ii) RI for 5 years with a fine of Rs.2,000/- for the offence under
Section 365 IPC, in case of default to pay fine, he shall undergo SI for
2 Months;
(iii) RI for 2 years for the offence under Section 506 IPC; and
(iv) RI 1 year for the offence under Section 342 IPC.
2. The trial court collated the facts and noted them as under:
“1. On 01.12.2017, victim along with her parents went to PS
Khyala and reported the offence of rape whereafter IO/SI Satyawati
took the victim along with her month to DDU hospital where the
victim was medically examined and her exhibits were seized.
Thereafter IO along with victim and her mother came back to PS and
IO deposited the exhibits in the malkhana. Thereafter victim was
given counselling and her statement was recorded by the IO. She
stated that she is 13 years old, studying in eighth standard and she
was not feeling well on that day and had not attended school. She
further stated that at about 11:30 AM, she was going to the house of
her grandmother (nani), which was at a distance of few meters from
her house. She stated that on the way she met accused Pawan, who
kept a cloth on her month from behind and took her to his home and
also threatened her to kill her in case she disclosed about it to
anyone. She also stated that he took off her pajama, pressed her
neck and also threatened to kill her and also committed rape on her.
She further stated that thereafter she came back home at about 1:30
PM and she called her father from the phone of some person. Her
father and her maternal uncle (mama) reached house of the accused
and took him to police station and victim, her grandmother and
mother also reached the PS. She also stated that accused is the
person who was a tenant in the house of her grandmother and hadSignature Not Verified
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ASWAL
vacated the house a day before the incident and had taken a new
house. On the basis of this statement, the present FIR under section
367, 376, 506, 340 IPC and 6 of POCSO Act was registered.”
3. During the trial, the prosecution examined a total of 15 witnesses,
including the child victim as PW-1, mother and father of the child victim as
PW-2 & PW-3 respectively, the grandmother (nani) of child victim as PW-4
and uncle of the child victim was examined as PW-13.
The age of the child victim was proved through the testimony of the
Principal (PW-5) of the school where the child was admitted in the Nursery
class. Her age at the time of incident was 13 years. To prove the MLC of
the child victim, the prosecution examined Dr Naved Lone as PW-6 and Dr
Pankit Ghelani as PW-7. The Investigating Officer (IO) i.e., SI Satyavati,
was examined as PW-14, while Head Constable Krishan was examined as
PW-15.
4. The appellant, while denying the prosecution’s case, claimed it to be a
case of false implication. Apart from examining himself under Section 315
Cr.P.C. as DW-3, the appellant also examined two witnesses in support i.e.,
appellant’s wife as DW-1 and his brother as DW-2. The prosecution’s case
is also stated to be an afterthought, as the appellant, despite being already
known to the victim, was not named in the MLC, while giving brief history
of the incident.
5. Learned counsel for the appellant has primarily attacked the testimony
of the child victim by contending that the same does not inspire confidence,
being full of material inconsistencies over her previous statements as well as
motivated on account of prior monetary dispute between her father and the
appellant. The testimony is further sought to be discredited as it is not
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ASWAL
corroborated by the material facts as revealed in the medical and forensic
examination reports. It is contended that though the case of the prosecution
was that the incident occurred while the child victim was going to her
grandmother’s (nani) house, the child victim has given different and
inconsistent reasons for going to her grandmother’s (nani) house. The
testimony of the child victim is also sought to be discredited by contending
that, though she had stated that the appellant after committing the offence,
had discharged (semen) inside her vagina, however, as per the FSL report
(Ex.PW-8/A), neither semen was found nor was any male DNA extracted in
the vaginal swab of the victim. Even the MLC (Ex.PW-1/A) does not record
fresh injury.
6. Another contention raised on behalf of the appellant is the
improbability of the narration of events, as the child victim has stated that
her mouth was gagged with a handkerchief while she was being taken by the
appellant to his room. However, on the way, she had met with a Bhaiya,
who did not stop the appellant from doing so and even the police made no
efforts to cite him as a prosecution witness during the trial. Besides the
child victim, the testimonies of other relatives were also doubted on account
of monetary disputes as the father of the child victim wanted to avoid his
liability to pay the appellant towards the medical expense that was incurred
in the context of road accident suffered by the appellant as well as by the
father of the child victim as revealed in the testimony of defence witnesses.
7. The appellant’s contentions were refuted by the learned APP as well
as learned counsel for the complainant. Learned counsels would rather
contend that the testimony of the child victim as well as other prosecution
witnesses is coherent, consistent and inspires confidence.
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ASWAL
8. First and foremost, the competence of the child victim as duly noted
by the trial court before recording her statement, is not under contest. The
child victim came to be examined as PW-1. A perusal of her statement
would reveal that she stated that her grandmother’s (nani) house was at a
walking distance of two minutes from her house. On 01.12.2017 at about
11.30 AM while the child victim was going to her grandmother’s (nani)
house, the appellant came from behind, and keeping a cloth on her mouth
muffled her and took her to his house, which was in the next gali and was at
a distance of one minute from her nani‟s house. On the way, one Bhaiya
met them and asked the appellant where he was taking the child victim. The
appellant told that person that the victim was his Bhanji and that he was
taking her to his house. The victim further stated that the appellant had
gagged her mouth by inserting the cloth in it and then the appellant forcibly
removed her clothes including undergarment as well as his own clothes. He
was completely naked and thereafter, he laid upon her. The relevant extract
of the testimony is:
“…Us ne mere saath bahut galat kam kiya. Usne apna pura
mere andar daal diya. Ld. Predecessor of this court had put a
question to her asking “Kya accused „P‟ Ne Apni susu wali
jagah aapki susu wali jagah ke andar daal dee? To which the
witness replied in affirmative….”
9. The child victim further stated that after the rape had been committed,
she was confined to the room for a long time. Thereafter, she picked an
object lying inside the room, hit the same on the appellant’s head.
Thereafter, she managed to wear her clothes and came out of the room and
locked it from outside. She requested a passerby to give her a phone to call
her father. Father of the child victim along with his uncle and nani reached
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ASWAL
the spot and took the appellant to the police station. She further deposed that
the appellant was already known being the tenant of her nani, who had
vacated her nani‟s house a day or two prior to the incident. She identified
the appellant as well as her clothes being T-shirt, pajami and underwear.
The witness was cross-examined at length. While taking the court through
cross-examination, learned counsel for the appellant would contend that the
timeline stated by the child victim of her coming from school and then going
to her nani‟s house, and informing her parents about the incident, does not
match the timelines stated by the father of the child victim. Though she
admitted the occurrence of the accident, she denied any quarrel between the
appellant and her father.
10. Father of the child victim, while appearing as PW-2, deposed that he
had four children, the child victim, 13 years old at the time of incident, being
the eldest of them. He further deposed that on the date of the incident, he
received a phone call from the child victim about the incident at about 1.30
P.M. As the witness, however, was not very forthcoming, the trial court
noted his demeanour and observed that he was very hesitant in speaking
about the details of the incident. In cross-examination, he denied the
suggestion that any quarrel had taken place between his brother-in-law and
the appellant over payment of loan. Interestingly, though entire fulcrum of
defence is a prior monetary dispute however, no suggestion was given to the
witness on the aspect of any expenses incurred by the appellant towards
PW2’s medical treatment, which were not paid back.
11. The child victim’s mother (PW3) had accompanied the victim at the
time of medical examination. In her cross-examination, though she admitted
the suggestion to the extent that both her husband and the appellant had
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ASWAL
suffered an accident, however, denied that her husband suffered any injury
and asked for financial help from the appellant. She specifically denied the
suggestion that a sum of Rs.50,000/- was spent on the medical treatment on
her husband, which was borne by the appellant.
12. The child victim’s grandmother (nani) was examined as PW-4. She
stated that the appellant used to be her tenant for about two years. The rape
was committed after the appellant had vacated the rented accommodation.
She denied the knowledge of any accident being suffered by the father of the
child victim and the appellant or that Rs.50,000/- was spent by the appellant
on the treatment of the father of the child victim due to injury sustained in
the accident. She denied the suggestion that to avoid any payment, the
appellant was falsely implicated.
13. Uncle of child victim (mama) was examined as PW-13. He deposed
that on the day of the incident, when he was at his workplace, he received a
call from the father of the child victim asking him to come to home and
informing him about the incident of rape. He went to the house of the
appellant whereafter apprehended and took him to the PS Khayala.
14. The child victim was medically examined on the day of the incident at
DDU Hospital. The prosecution examined PW-6 and PW-7 in this regard.
While PW-6 was not even cross-examined, nothing was elicited in the cross-
examination of PW-7.
The remaining being police witnesses deposed relating to other
aspects of examination including arrest, which is not under contest.
15. Pertinently, the child victim and other witnesses have identified the
appellant. The appellant has taken defence of false implication. Though
suggestions have been given to the effect that sometime earlier, the father of
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ASWAL
the child victim and the appellant while undertaking a journey to
Bulandshahar had met with an accident and an expenditure of Rs.50,000/-
was incurred towards medical treatment of father of victim, which was paid
by appellant. However, interestingly, though the said suggestion was given
to everyone else, but not to the most relevant person, i.e., the father of the
child victim.
Curiously, at the stage of recording of his statement under Section 313
CrPC, the appellant for the first time set up a plea of alibi. It was stated that
at the time of incident, he was not in the room i.e., the place of incident , but
had gone with her wife, daughter and parents-in-law to drop them at Anand
Vihar Bus stand as they were going to their native village. After dropping
them, he returned back at 4:30 PM.
16. The appellant’ wife during her deposition stated that in the year 2016-
17, the parents of the child victim and her husband had gone to
Bulandshahar to attend a marriage and on their way back, the appellant and
the father of the child victim met with an accident and suffered injuries. She
further stated that since the father of child victim had no money with him at
that point in time, her husband i.e., the appellant paid the money towards
medical expenses incurred, which was about Rs.30,000/-. At this stage it is
pertinent to note that though the appellant had taken such defense of having
spent considerable amount on the medical expenses, no medical report or
proof of payment was produced in support of the same.
17. The appellant examined his brother as DW-2 and examined himself as
DW-3. In his statement, he stated that on 01.12.2017, while going to drop
his wife, children and parents-in-law, he left home at about 9.00 AM and
came back at about 4.30 PM. At this point, interestingly, he came with
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ASWAL
another story that the father of the child victim demanded Rs.5-6 lakhs for
not implicating him in the present case. The said fact was not even suggested
to any of the witnesses.
18. Indeed, it is trite law that the testimony of the child victim requires
deeper scrutiny, the children being prone to tutoring. The testimony is to be
carefully evaluated in the light of attending circumstances to see if the same
inspires confidence. The Court is required to see as to whether the child
victim is wholly reliable, wholly unreliable or partly reliable. The Supreme
Court in Dattu Ramrao Sakhare v. State of Maharashtra1, observed as
under:
“5. …A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of conviction.
In other words even in the absence of oath the evidence of a
child witness can be considered under Section 118 of the
Evidence Act provided that such witness is able to understand
the questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would depend
upon the circumstances of each case. The only precaution
which the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a reliable
one and his/her demeanour must be like any other competent
witness and there is no likelihood of being tutored.”
In the present case, the child victim in her statement recorded during
the investigation, as well as at the time of her deposition, categorically stated
about the present appellant, who was, indisputably, already known to her.
Though the testimony sought to be doubted for not stating the timelines of
the incident and its reporting as stated by the other persons, it is not to be
1
(1997) 5 SCC 341
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ASWAL
forgotten that the child victim, 13 years of age, was first examined on
25.09.2018 after a gap of around one year. Minor variations or
inconsistencies as alleged, as to the reason for child victim to go to the house
of her grandmother are immaterial and do not cast a doubt on the relevant
facts stated by her.
19. At this stage, it is worth noting that the appellant has not contested the
mode and manner of his arrest. The court also deems it apposite to refer to
the DNA analysis of the handkerchief as well as clothes of the child victim
that were seized during the medical examination. While the biological
examination revealed that human semen was found on the underwear and
pajami, saliva was also detected on the handkerchief. The exhibits were
further subjected to DNA analysis in which a mixed DNA profile was
generated from the blood sample of the child victim and the appellant, which
was found to be accounted from the source of Ex.11b (pajami) and Ex.12
(handkerchief). In the above backdrop, non-detection of semen in the
vaginal vulvular swab of the child victim would not prevail over other
evident that has come on record.
20. As such, this court has no hesitation to observe that the testimony of
the child victim also finds corroboration in the forensic analysis report.
Though it is contended that investigation officer has failed to locate and cite
the person who had seen the appellant taking the child victim, it is settled
law that mere failure in investigation would not discredit the otherwise
trustworthy testimony.
21. Section 29 of POCSO Act provides that Court shall presume that the
accused has committed the offence for which he was charged with, until the
contrary is proved. However, before this presumption can operate, the
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ASWAL
prosecution has to prove the foundational facts. A three Judge Bench of the
Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat2
has held that section 29 of the POCSO Act comes into play once the
foundational facts are established. It holds as follows:-
35. It will be seen that presumption under Section 29 is
available where the foundational facts exist for commission of
offence under Section 5 of the POCSO Act. Section 5 of
the POCSO Act deals with aggravated penetrative sexual assault
and Section 6 speaks of punishment for aggravated penetrative
sexual assault. Section 3 of the POCSO Act defines what
penetrative sexual assault is.
22. Gainful reference in this regard may also be made to the decision of a
Co-ordinate Bench of this Court in Veerpal v. State3, wherein it was held as
under:-
“20. Section 29 of POCSO Act provides that Court shall
presume that the accused has committed the offence for which
he is charged with, until contrary is proved. However, the
presumption would operate only when the prosecution proves
the foundational facts in the context of allegation against the
accused beyond reasonable doubt. After the prosecution
establishes the foundational facts, the presumption raised
against the accused can be rebutted by discrediting the
prosecution witnesses through cross-examination and
demonstrating the gaps in prosecution version or improbability
of the incident or lead defence evidence in order to rebut the
presumption by way of preponderance of probability.”
In the present case, the prosecution has been able to lay the foundation
of the facts and thus brought into play Section 29 of the POCSO Act, the
appellant has miserably failed to rebut the said presumption. The defence
2
(2025) 2 SCC 399
3
2024 SCC OnLine Del 2686
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ASWAL
taken by the appellant is untenable and rightly discredited by the Trial Court.
23. In view of the above, finding no merit in contentions, the appeal is
dismissed.
24. A copy of this judgment be communicated to the concerned Trial
Court as well as to the concerned Jail Superintendent.
25. Copy of this judgment be also uploaded on the website forthwith.
MANOJ KUMAR OHRI
(JUDGE)
AUGUST 14, 2025/pmc
Signature Not Verified
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By:GAUTAM
ASWAL
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