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Delhi High Court
Satish vs State Nct Of Delhi And Anr on 21 July, 2025
Author: Swarana Kanta Sharma
Bench: Swarana Kanta Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.07.2025
+ CRL.A. 371/2025 & CRL.M.(BAIL) 648/2025
SATISH .....Appellant
Through: Mr. Aditya Aggarwal, Ms.
Pooja Roy and Ms. Shivani
Sharma, Advocates
versus
STATE NCT OF DELHI AND ANR. .....Respondents
Through: Mr. Rajkumar, APP for the
State.
CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
DR. SWARANA KANTA SHARMA, J
1. By way of the present appeal, the appellant seeks setting aside
of the judgment dated 30.05.2024 [hereafter „impugned judgment‟]
and order on sentence dated 16.01.2025 [hereafter „impugned order
on sentence‟], passed by the learned Additional Sessions Judge
(FTSC) (POCSO)-03, South-West District, Dwarka Courts, Delhi
[hereafter „Trial Court‟] in Sessions Case No. 540/17, arising out of
FIR bearing no. 233/2017, registered on 10.08.2017 at Police Station
Najafgarh, Delhi for the commission of offence punishable under
Section 376 of the Indian Penal Code, 1860 [hereafter „IPC‟] and
Section 6 of the Protection of Children from Sexual Offences Act,
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Signing Date:24.07.2025
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2012 [hereafter „POCSO Act‟].
FACTUAL BACKGROUND
2. Briefly stated, the facts of the present case are that on
10.08.2017, child victim „S‟ had written a letter to her school teacher
regarding her sexual exploitation by her uncle (fufa) from the last 4
years and sought help of her teacher to save her. In the said letter, she
mentioned that her uncle would regularly do bad things to her and
had been doing so continuously for the past four years. He used to
threaten her by saying that if she told anyone, both of them would die
together. She further narrated that on one occasion, while he was
committing the said act, her elder brother arrived, and she quickly
went and opened the door. When her brother asked her why her face
was red, she did not say anything because the accused had beaten her
that day. She also stated that the accused had repeated the act even
the day before. In her letter, she expressed her desperation and fear,
stating that she did not want to die, and that despite her refusal, the
accused continued to sexually abuse her, beat her, and threaten her on
a daily basis. Upon receiving this letter, the school administration had
called the police.
3. After arrival of a counsellor, the statement of the child victim
was recorded by the police, who disclosed that she had been residing
for the past 6-7 years with her paternal aunt (bua), her aunt‟s
husband (fufa), whom she addressed as „daddy‟, and her
grandmother. She had been studying in Class 8th at Government
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School No. 3, Najafgarh. She stated that for the past four years, her
uncle had been sexually assaulting her. Whenever she used to return
from school, he used to take her either to the upstairs or downstairs
room, bolt the door from inside, undress her and himself, and insert
his private part into hers. He also used to press and suck her chest
with his hands and mouth. She narrated that even on the previous
day, i.e., 09.08.2017, after she had come back from school and was
sitting in the room, the accused had entered, latched the door,
removed her leggings and undergarment, undressed himself, and
again inserted his private part into hers before leaving to sleep in the
upper room. She stated that she had never informed anyone about
these repeated acts due to fear, but now she wanted strict punishment
for the accused.
4. On the basis of the statement of the victim, the present FIR was
registered. Thereafter, the child victim was taken for medical
examination on 10.08.2017 at Rao Tula Ram Memorial Hospital,
Jaffar Pur, New Delhi- 110073, where the child victim gave the
history of sexual assault by her uncle (appellant/accused), and also
stated that last assault took place one day before the examination. The
doctor concerned took the sample of the child victim and handed over
the same to the I.O.
5. On 11.08.2017, the present accused was arrested. On the said
day, the victim‟s statement was also recorded under Section 164 of
the Code of Criminal Procedure, 1973 [hereafter „Cr.P.C.‟] before
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the learned Magistrate, wherein she alleged that when she was in
Class 5th, and was once asleep, her fufa had made her sit in his lap,
removed her leggings and committed wrong act with her. Since then,
he had been continuously committing such acts with her, last incident
being 09.08.2017, when she had returned home from school.
6. After completion of the investigation, chargesheet was filed
before the learned Trial Court on 01.09.2017, and charges were
framed against the appellant. During the course of the trial, the
prosecution examined 17 witnesses. The statement of the accused
was recorded under Section 313 of the Cr.P.C., and examined 2
witnesses in his defence. After hearing the final arguments on behalf
of both sides, the learned Trial Court, vide the impugned judgment,
found the appellant guilty of the offences under Sections 376 of the
IPC and Section 6 of the POCSO Act. The concluding portion of the
judgment reads as under:
“…..51. In view of the above discussion, it is concluded that the
prosecution has been able to prove its case for the offence of
aggravated penetrative sexual assault by a near relative of
victim i.e. her uncle (Phupha). Consequently, accused Satish is
convicted for the offence 376 of IPC r/w Section 6 of
Protection of Children from Sexual Offences Act (POCSO).
Let he be heard on the point of sentence on next date of
hearing…”
7. Thereafter, by way of the impugned order on sentence, the
learned Trial Court awarded rigorous imprisonment for a period of 20
years along with a fine of ₹2,000 for the offence under Section 6 of
the POCSO Act, and rigorous imprisonment for a period of 20 years
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Signing Date:24.07.2025
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along with a fine of ₹2,000 for the offence under Section 376 of the
IPC. The relevant portion of the order on sentence reads as under:
“….11. Keeping in view all the mitigating and incriminating
circumstances, convict Satish, son of Sh. Attar Singh is
sentenced to rigorous imprisonment for a period of 20 years
(Twenty Years) and to pay fine of Rs. 2,000/- (Rupees two
thousand only) for the commission of the offence punishable
under Section 376 IPC, in default of payment of fine the
convict shall undergo simple imprisonment for a period of 30
days; for the offence punishable u/s 6 of POCSO Act, he is
sentenced to imprisonment for a period of 20 years (Twenty
Years) and to pay fine of Rs.2,000/- (Rupees two thousand
only) in default of payment of fine the convict shall undergo
simple imprisonment for a period of 30 days.
12. All the sentences shall run concurrently.
13. Benefit of section 428 of Cr.P.C, if any, is also extended to
the convict.
14. Fine amount is not paid by the convict. As such, he shall
further undergo simple imprisonment for thirty days.
15. Prosecution has also placed on record an affidavit
mentioning the expenditure incurred by the State in prosecution
of the present case. As per the said affidavit, the state has
incurred a sum of Rs. 12,577/- in conducting the prosecution.
Keeping in view the financial status of the convict, State is
directed to bear the expenses on prosecution of the convict on
its own.
COMPENSATION
16. Victim Assessment report has been received from District
Legal Services Authority, South-West.
17. As per the settled principles of law, Courts trying the
offences of sexual assault have the jurisdiction to award the
compensation to the victims being an offence against the basic
human right. In the present case, victim is a minor girl aged
about 12 years on the date of incident i.e. 09.08.2017 and
considering the allegations of commission of offence even
prior to that for 4 years, the child victim is found to be of
tender age of 8 years. As per Clause 9 (3) of the Compensation
Scheme for Women Victims/Survivors of Sexual Assault/Other
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Crimes, in case the victim is a minor, the limit of compensation
shall be deemed to be 50% higher than the amount mentioned
in the Schedule appended to the scheme. As per the Schedule,
for the offence of unnatural sexual assault, minimum
compensation has to be Rs.4 lakhs and maximum
compensation is Rs.7 lakhs. However, in the case of Mst. X
(through mother and natural guardian) Vs. State and Ors. W.P.
(Crl.) No.1419/2020 dated 13.05.2021, the following was held
by the Hon‟ble High Court of Delhi:
“24. In the above view of the matter, in the opinion
of this court, the learned ASJ was not bound by the
DVC Scheme 2018, which scheme including the
maximum and minimum compensation envisaged
in the schedule thereto, would at best serve as
„guidelines‟ for assessment of compensation
payable to the petitioner. Considering that the
petitioner was subject to the offence of „Unnatural
Sexual Assault‟, for which the Schedule to Part II
setsdown the minimum limit of compensation as
Rs. 4 lacs and the upper limit of compensation as
Rs. 7 lacs. Since the petitioner is a „minor‟ for
whom Clause 9 (Part-11) of the DVC Scheme 2018
says that the minimum and maximum limits of
compensation would be deemed to be 50% higher
than those mentioned in the Schedule, in the
petitioners case the minimum and maximum limits
would stand enhanced from Rs. 4 lacs to Rs. 6 lacs
and from Rs. 7 lacs to Rs. 10.5 lacs respectively.
To reiterate, these limits on the amount of
compensation payable would be binding upon the
DLSA/DSLSA but not upon the court. It may be
noted that Clause 9(3) (Part II) of the DVC Scheme
2018 even grants discretion to the DLSA/DSLSA
to say that “…However, in deserving cases, for
reasons to be recorded, the upper limit may be
exceeded.”
18. Hence, keeping in view the age of the victim and her family
circumstances, this Court deem it fit to award an amount of
Rs.10,00,000/- (Rupees Ten Lakh only) to the victim as
compensation after adjusting the interim compensation already
granted. Keeping in view the Victim Impact Report received
from DLSA, as per which, the convict does not have paying
capacity, it is directed that the Ld. Secretary, District Legal
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Services Authority, South-West, New Delhi shall ensure that
the amount is given to the victim within one month on receipt
of this order and shall further ensure that the said amount is
disbursed in such a manner that the same be used for welfare
and rehabilitation of the victim. 19. Parents of the victim shall
contact the office of DLSA with the assistance of Ms. Nigar
Parveen, Ld. Counsel for DCW. 20. Copy of the judgment and
of this order on sentence be supplied to the convict, free of
cost. It be also given dasti to the parents of the victim.
21. Convict is informed that he has a right to prefer an
appeal/revision against the judgment and order on sentence. He
has been apprised about his right to approach the Legal
Services Authorities for the services of Legal Aid Counsel, in
case he cannot afford to engage an advocate.
22. Copies of the judgment dated 30.05.2024 and this order on
sentence be sent immediately to the learned Secretary, DLSA,
South-West through cinail:[email protected] and also
physically for information and compliance regarding the
payment of compensation amount as awarded above.
23. File be consigned to record room after due compliance and
after the expiry of the period of limitation.
24. In terms of the “Guidelines of High Court of Delhi for
recording of evidence of vulnerable witnesses”, the Ahlmad is
further directed to keep the record containing identifying
information of vulnerable witness confidential and kept under
seal before consigning the judicial file to record room. The
record shall only made available upon written request and order
of the court…”
8. Aggrieved by his conviction, the appellant has assailed the
impugned judgment of conviction and order on sentence by way of
the present appeal.
SUBMISSIONS BEFORE THE COURT
9. The learned counsel appearing on behalf of the appellant has
contended that the learned Trial Court failed to appreciate that the
prosecution did not establish the foundational facts underlying the
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registration of the FIR. It is submitted that the first complaint was
made by the victim on 10.08.2017 to her school teacher, following
which the police was informed and the present FIR was registered. It
is argued that although the undergarment allegedly worn by the
victim was sealed by the doctor who conducted the medical
examination and later handed over to the I.O., and despite the FSL
report confirming the presence of semen matching the DNA of the
accused, the victim, during her chief examination on 06.10.2018,
failed to identify the said undergarment as belonging to her. The
learned counsel has also contended that as per the victim‟s own
statement, the incident allegedly occurred on 09.08.2017 at around
1:00 PM. She approached her teacher the following day, on
10.08.2017, and was thereafter taken for medical examination. The
MLC records the “brought time” as 6:18 PM. However, the Trial
Court failed to consider that the victim had purportedly worn the
same undergarment for over 29 hours, despite having attended school
the next day, whereas other items, such as the bed sheet and the
accused’s clothes, were admittedly changed, as deposed by PW-15
(I.O. SI Amolak) during cross-examination. It is also submitted that
the MLC does not mention whether the victim had bathed or not after
the alleged incident, a relevant factor in assessing the evidentiary
value of the garments allegedly worn by her during the assault.
10. The learned counsel appearing for the appellant further argued
that during the first examination of the victim (PW-1) on 15.12.2017,
the Legal Aid Counsel appearing for the accused had not disputed the
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identity of the case property as the articles were with the FSL and not
produced before the Court at that time. The cross-examination was
thus closed. Subsequently, on 09.08.2018, an application for bail was
listed, and the new counsel for the accused submitted that the
previous Legal Aid Counsel had not raised any objection regarding
the identity of the undergarments, and accordingly sought re-calling
of PW-1 for identification of the case property. It is submitted that
the Trial Court, while accepting the importance of the undergarment
as a crucial piece of evidence due to the matching DNA, allowed the
re-calling of PW-1. However, when the case property (i.e., the
undergarment) was first shown to PW-10 (the bua of the victim) on
30.07.2018, she categorically denied that it belonged to the child
victim, stating that the navy-blue panty was not hers. Similarly, when
PW-1 was re-called, she too failed to identify the garment.
11. It is argued that the learned Trial Court erred in convicting the
appellant despite the lack of any reliable evidence to establish that the
undergarment in question actually belonged to the victim. Even PW-
2, during her chief examination, merely stated that the undergarment
was taken by the doctor concerned, but no case property was shown
to her in court. Thus, it is submitted that the prosecution failed to
prove that the clothes from which semen was recovered in fact
belonged to the victim.
12. It is also contended that the victim had alleged forcible sexual
assault, but the MLC revealed no internal or external injuries, which
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casts further doubt on the prosecution version. It is also contended by
the learned counsel that it is doubtful as to whether any semen sample
or the blood sample of the accused was collected and sent to FSL
since PW-9 has deposed that he had collected the samples of the
accused and deposited in malkhana on 10.08.2017, whereas the
accused himself was apprehended and arrested only on 11.08.2017
and medically examined on that day. Lastly, it is submitted that the
learned Trial Court erred in relying upon the FSL report to
corroborate the victim‟s testimony, as the report itself is inconclusive
and suffers from material deficiencies. Notably, Parcel 4, containing
the semen sample of the accused, was returned unexamined, raising
serious doubts about the manner in which the DNA matching was
reported. The FSL findings, therefore, could not have been relied
upon as conclusive corroborative evidence. It is thus prayed that the
appellant be given the benefit of doubt and be acquitted in the present
case.
13. The learned APP for the State, on the other hand, strongly
opposes the present appeal and submits that the conviction is based
on a well-reasoned and detailed analysis of the evidence on record by
the learned Trial Court. It is contended that the prosecution has
successfully proved its case beyond reasonable doubt through the
cogent and consistent testimony of the victim, who clearly implicated
the appellant. It is further submitted that the medical and forensic
evidence, particularly the FSL report matching the DNA of the
appellant with semen found on the undergarment of the victim,
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conclusively supports the prosecution‟s case. The learned APP argues
that minor inconsistencies, if any, do not go to the root of the matter
and that the judgment warrants no interference. He thus prays that the
present appeal be dismissed.
14. This Court has heard arguments addressed on behalf of both
the parties and has perused the entire material available on record.
ANALYSIS & FINDINGS
15. Before proceeding to examine the contentions raised on behalf
of the appellant, it is apposite to first consider the testimony of the
material witnesses in the present case.
16. In the instant case, the child victim was taken in adoption by
the accused, who is her maternal aunt‟s husband (fufa), at a very
young age. As per her statement recorded under Section 164 of
Cr.P.C., she stated that the accused had been sexually exploiting her
since she was in 5th standard. She was examined as PW-1 before the
learned Trial Court. PW-1, in her deposition, initially gave a brief
background about her class and school. She stated that the accused,
whom she referred to as „Daddy‟, used to scold and beat her for about
four years, and at first, she did not mention anything further having
happened at her aunt‟s house. However, she abruptly stopped
deposing and, upon request by the learned APP, was permitted to be
cross-examined. In response to a Court query as to why she did not
mention the allegations earlier, PW-1 stated that she forgot to tell.
She further disclosed that she had come to Court accompanied by her
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father, two aunts (one of whom is the wife of the accused), and also
the sister of the accused and her husband. PW-1 testified that she had
confided in her school teacher about the accused doing “wrong
things” to her. She narrated to the police that the accused removed
her salwar/jeans and his own lower garment, and then inserted his
private part into hers. She also described that the accused used to
press and suck her breasts. She proved her complaint as Ex. PW-1/A
and the site plan prepared at her instance as Ex. PW-1/B. She also
identified her medical examination report as Ex. PW-1/C and stated
that she could identify her clothes. Although the case property
(victim‟s clothes) was not received from the FSL at that time, the
identity of the same was not disputed by the accused. She also
identified her signatures on her statement recorded under Section 164
of Cr.P.C. PW-1 further stated that after the incident, she began
living with her parents and changed her school. She also deposed
about another instance when the accused was doing wrong acts with
her and her brother arrived; upon seeing her face red, he asked what
had happened, but she remained silent out of fear. She also stated that
the accused beat her on the same day. During her testimony, PW-1
identified the accused before the learned Trial Court. However, when
the child victim was recalled for examination to identify her clothes,
she failed to identify her blue-colored underwear.
17. PW-2 Dr. Shruti Joshi Dabral, who examined the child victim,
deposed that the child had given a history of repeated sexual assault
by her uncle, Satish, with the last incident occurring just a day prior
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to the medical examination. She further testified that she collected the
necessary medical samples from the victim and handed them over to
the Investigating Officer. PW-4 Dr. Someshwar Boldoloi was
examined to prove the MLC of the accused. PW-5 and PW-6, both
teachers, were examined to establish the age of the child victim based
on school records.
18. PW-7, Ms. Meera Kumari, a guest teacher and Special
Educator at the school of the child victim, testified that she came to
know of the victim‟s sexual exploitation by her paternal uncle (fufa)
at her aunt‟s residence. This information was shared with her by Ms.
Neelam, a counselor at the same school. PW-8, Ms. Neelam Kumari,
who is the Educational and Vocational Guidance Counselor (EVGC)
at GGSS School No. 3, Najafgarh, stated that she was the first person
to come in contact with the child victim on 10.08.2017, during a
group counseling session for girls. The victim disclosed her ordeal to
her during that session. PW-8 informed PW-7 and subsequently
called the police. In her cross-examination, she reaffirmed that the
disclosure and counseling session took place on 10.08.2017.
19. PW-9, Head Constable Sudhir, testified regarding the deposit
of case exhibits at FSL Rohini. He confirmed that 15 sealed parcels
relating to the victim and four exhibits related to the accused were
deposited through the Investigating Officer, SI Amolak.
20. PW-10 is the paternal aunt (bua) of the victim and wife of the
accused. She did not support the prosecution‟s case and denied being
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present at the time of the victim‟s medical examination, though her
name is recorded in the MLC. When shown the case property i.e. the
underwear of the victim, she denied it belonged to the child. She
refuted the prosecution‟s suggestions regarding her visit to the
hospital, her presence as recorded in the MLC, the clothes worn by
the victim, and allegations of influencing the child to depose in favor
of the accused. However, she conceded that the victim is currently
residing with her parents and that the child had made a disclosure at
school.
21. PW-11 to PW-15 and PW-17 are all police personnel, with
PW-15 being the Investigating Officer of the case. PW-16 proved the
FSL report.
22. Having taken note of the testimonies of the witnesses, this
Court notes that in the present case, insofar as the age of the child
victim is concerned, it has been the case of prosecution that she was a
minor, aged about 12 years, at the time of lodging of the present FIR.
The learned Trial Court observed as under with respect to the age of
the victim:
“45. Applying the principles laid down by the Hon‟ble High
Court of Delhi in Dharmender (supra), following facts have
come on record in the present case:-
(i) The school record pertaining to the birth record of PW-1 Ex.
PW6/A and Ex PW6/B and Ex. PW6/C have been duly proved
in compliance with Section 94(2)(i) of Juvenile Justice (Care
and Protection of Children) Act 2015.
(ii) According to school record, the date of birth of PW-1 is
01.01.2005.
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(iii) There is consistency in all the documents with respect to
age of PWl/child victim „S‟.
(iv) Moreover, no question disputing/questioning the age of
victim „S‟ was put to her and witnesses from school at the time
of their cross examination by the learned counsel for the
accused. The tenor of cross examination of victim as well
witnesses from school also goes to show that defence has not
challenged the age as well as date of birth of the victim.”
46. On the basis of aforesaid discussion, this Court is of the
considered opinion that prosecution has proved the date of
birth of PW-I/’S’ child victim as mentioned in school record
Ex. PW6/A, Ex. PW6/B and Ex. PW6/C as per mandate of
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act 2015. Thus, the date of birth of PW-1 is
accepted to be 01.01.2005. Accordingly, the age of PW-1 at
the time of commission of alleged offences i.e. the child
victim was about 12 years & 7 months. Thus, on the date of
commission of alleged offence, the age of PWl was less than
18 years and hence, she was a child u/s 2(d) of the POCSO
Act.”
(Emphasis added)
23. It is clear that the appellant has not disputed the age of the
victim, either before the learned Trial Court or before this Court.
Thus, the applicability of provisions of POCSO Act to the present
case is undisputed.
24. As far as the medical evidence is concerned, the MLC of the
victim records the history given by her, of the sexual assault
committed by her fufa i.e. the appellant upon her for the last 4 years.
The hymen of the victim was also reported as „torn‟. Insofar as the
argument that the victim had alleged forcible sexual assault, but the
MLC revealed no internal or external injuries, is concerned, this
Court is of the view that the doctor i.e. PW-2 was cross-examined on
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the aspects of there being no injury on the breasts or the private parts
of the victim, however, she clearly stated that – “It is not necessary if
a 40 years old man had sexual intercourse with a child 14 years old,
the child get the internal injury in her private part. It is also not
necessary that if the breast of child victim were pressed, the injury
would occur on her breast.”
25. In the present case, the main contention of the learned counsel
for the appellant is that the victim child has not identified a crucial
piece of evidence i.e., her underwear in court, and that since the FSL
Report is based on the semen stains found on the said underwear, the
entire prosecution case stands vitiated on this ground alone.
However, this Court is of the considered view that the record reveals
a different picture. The proceedings before the learned Trial Court
clearly record that the earlier defence counsel had specifically stated
that he did not dispute the identity of the case property, i.e., the
underwear of the child victim. This concession was duly recorded by
the Trial Court. However, subsequently, when a new counsel
appeared for the defence and moved an application under Section 311
of Cr.P.C. seeking recall of the child victim for further examination,
and she was again questioned about the identification of the case
property, it was at that stage that she did not identify the said
underwear as hers. In this regard, this Court is of the opinion that it is
a matter of record that the case property in question was not seized by
the police from any private place but was, in fact, seized by the
doctor who had medically examined the child victim. The medical
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examination was conducted when the victim was brought to the
hospital wearing the said underwear. The MLC dated 10.08.2017
clearly mentions that the underwear worn by the victim at the time of
examination was seized, sealed, and handed over to the Investigating
Officer by the doctor concerned (PW-2). While the child victim, at
the time of her subsequent recall, may not have recollected or
identified the underwear after a lapse of time, the doctor who
conducted the examination has recorded, in continuity with the
details of the medical examination, that the underwear was indeed
worn by the child at the time of the check-up, and was seized and
sealed in her presence.
26. Further corroboration is found in the testimony of PW-14, HC
Kapil Dev, and PW-15, SI Amolak, as well as in the Seizure Memo
Ex. PW-14/A. The said memo details the fifteen exhibits that were
collected and sealed by Dr. Shruti (PW-2) at the time of the medical
examination. PW-14 specifically deposed that – “In the hospital, Dr.
Shruti had given the exhibits/samples of the child victim in a sealed
box to SI Amolak, who had seized the exhibits/samples of the child
victim vide seizure memo Ex. PW-14/A bearing my signature at point
A. Thereafter, on the instruction of the IO, I had deposited the sealed
exhibits/samples in the malkhana, P.S. Najafgarh.” PW-15, the I.O.
of the case, similarly deposed that – “I collected sealed exhibits from
the doctor after the medical examination of the child victim and the
same were seized by me vide seizure memo already Ex. PW-14/A. On
return back to the police station, I sent HC Kapil for depositing the
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case property in the malkhana.”
27. In light of the aforesaid, this Court is of the considered view
that there was neither any reason nor any occasion for the doctor to
fabricate or falsely record the seizure of the said underwear in the
MLC, nor could the doctor have planted or manipulated such an
article. In her deposition, the child victim also stated that the doctor
had taken her clothes at the time of the check-up, which further
supports the prosecution version. Therefore, the contention raised by
the learned counsel for the appellant, that the prosecution case stands
demolished merely on the ground that the victim did not identify the
underwear in court, is found to be devoid of merit and is accordingly
rejected.
28. The learned counsel for the appellant has also contended that
the FSL report does not support the prosecution‟s case. It was argued
that the samples of the accused could not have been sent to the FSL
for examination as evident from contradictions in the records and
testimony of PW-9 and, therefore, there was no question of its
comparison with the semen stains found on the underwear of the
victim child. However, this contention is clearly contrary to the
record. This Court notes that the accused was arrested on 11.08.2017,
as is evident from the Arrest Memo (Ex. PW1/D). Following his
arrest, he was taken for medical examination, and his MLC was
prepared on 11.08.2017 at about 12:30 PM. The concerned doctor
specifically recorded that both the semen and blood samples of the
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accused had been obtained. Thereafter, a seizure memo of the
exhibits collected from the accused was prepared on the same day,
i.e., 11.08.2017, by SI Amolak, in the presence of Constable Ajeet
Singh, who signed as a witness. This seizure memo clearly records
that Dr. Someshwar handed over the accused‟s exhibits, collected
during the medical examination, including the semen and blood
samples, to the Investigating Officer. As per the testimonies of the
prosecution witnesses, the exhibits of both the victim and the accused
were then sent to the FSL on 14.08.2017. An acknowledgment letter
confirming receipt of these exhibits at FSL has also been placed on
record.
29. At this stage, it is important to address the argument raised by
the learned counsel for the appellant, who pointed out that PW-9, HC
Sudhir, deposed before the learned Trial Court that on 10.08.2017, he
received the exhibits of the victim and, on the same day, also
received the exhibits pertaining to the accused. It is contended that
this could not be correct since the accused was arrested only on
11.08.2017, and his samples could not have been received a day
prior. In this regard, this Court is of the view that although PW-9 has
stated that he received the accused‟s exhibits on 10.08.2017, the same
is evidently erroneous and not supported by the documentary
evidence on record. All other records clearly indicate that the accused
was arrested on 11.08.2017, and his medical examination was
conducted on the same day, during which his exhibits were collected
and handed over to the police. Importantly, PW9 was not cross-
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examined by the defence counsel on this alleged discrepancy in the
date. Therefore, in the absence of any cross-examination or challenge
to the testimony of PW-9 on this aspect, the mere statement of an
incorrect date, unsupported by any corroborating material, cannot
enure to the benefit of the accused, particularly when the rest of the
documentary and oral evidence is consistent and points toward the
guilt of the appellant.
30. It is to be noted that the FSL report in the present case clearly
states that human semen was detected on the underwear of the victim.
Furthermore, the DNA fingerprinting analysis confirmed that the
semen stains present on the underwear of the victim matched the
blood sample of the appellant. While it is true that the FSL report
notes that the sealed semen sample of the accused was not opened
and examined, this fact does not benefit the appellant in any manner,
as the forensic result based on the comparison of semen stains on the
victim‟s underwear with the appellant‟s blood sample unequivocally
established his involvement. It is also significant to note that PW16,
the Senior Scientific Officer (Biology), FSL Rohini, had duly proved
the FSL report during her deposition before the Trial Court. Her
testimony went unchallenged, as the defence counsel did not cross-
examine her on any aspect.
31. The learned counsel for the appellant also contended that
another prosecution witness, i.e. the Bua of the victim (PW-10),
failed to support the prosecution‟s case. In this regard, this Court is of
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the considered opinion that PW-10, who is the Bua of the victim
child, is also the wife of the accused. Therefore, it is not surprising
that she did not support the prosecution‟s case or failed to identify the
case property. Her testimony, in the given circumstances, appears to
be coloured by her relationship with the accused and cannot be relied
upon. Accordingly, this contention of the appellant is rejected.
32. As far as the argument of the appellant regarding the alleged
motive for false implication by the child victim – that she was
reprimanded by the accused for bringing some boys home – is
concerned, this Court finds no merit in the same. The statement of the
accused recorded under Section 313 of Cr.P.C., as well as the defence
evidence, is completely silent with respect to the identity of such
boys or the specific date and time when they were allegedly brought
to the house. Furthermore, during her cross-examination, the victim
child (PW-1) categorically denied the suggestion that on 09.08.2017
she had returned home accompanied by some boys and that the
accused had objected to the same. In light of these facts, the alleged
motive put forth by the appellant stands unsubstantiated and is of no
assistance to the defence.
33. Furthermore, this Court is of the opinion that the minor child
victim was not residing with her parents at the relevant time, but was
living with her Bua, Fufa (the accused), and grandmother. The fact
that she confided in one of her school teachers about the repeated
sexual assault committed upon her by the accused is a crucial aspect
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of the case. It demonstrates not only the sustained trauma suffered by
the child but also the fear and helplessness she must have felt within
the very household where she was supposed to feel protected and
cared for. The decision of the child to disclose the abuse to a teacher
rather than to any family member is understandable and significant. It
reflects the psychological state of a vulnerable child who, having
been subjected to prolonged abuse by a close relative, found it
difficult to speak up within the family environment. The act of
confiding in a teacher indicates that she was seeking help from a
figure she trusted and viewed as capable of providing safety and
support. Such disclosures by child victims, particularly in cases
involving intra-familial abuse, are often delayed and made to
individuals outside the immediate family, due to feelings of shame,
fear of disbelief, and emotional manipulation. Her disclosure thus not
only lends credibility to her version but also is also similar with
behavioural patterns seen in victims of child sexual abuse.
34. Therefore, in the totality of the facts and circumstances of the
present case, this Court is of the considered view that the prosecution
has succeeded in proving its case beyond reasonable doubt. The
testimony of the child victim, which is credible, finds corroboration
from the depositions of her school teachers, the letter written by the
victim herself, her statement recorded under Section 164 of Cr.P.C.,
as well as the medical evidence including the MLC and the FSL
report. All these pieces of evidence, when read together, form a
cogent and compelling chain pointing towards the guilt of the
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appellant. Thus, his conviction for commission of offence under
Section 376 of IPC and Section 6 of the POCSO Act is upheld.
35. The learned Trial Court has authored a well reasoned judgment
on every aspect and after considering the overall facts and
circumstances of this case, this Court finds no infirmity or illegality
in the impugned judgment dated 30.05.2024.
36. However, insofar as the sentence awarded to the appellant is
concerned, this Court notes that the learned Trial Court has sentenced
the appellant to undergo rigorous imprisonment for a period of 20
years for the offence under Section 376 of IPC as well as for the
offence under Section 6 of the POCSO Act.
37. It is evident that the learned Trial Court has overlooked the
mandate of Section 42 of the POCSO Act, which clearly lays down
that where an act or omission constitutes an offence punishable both
under the POCSO Act and under certain provisions of the IPC, then,
notwithstanding anything contained in any other law, the offender
shall be liable to punishment under either of the two statutes, but not
both, and that too under the statute which provides for the
punishment which is greater in degree. Additionally, Section 42A of
the POCSO Act provides that the provisions of the POCSO Act shall
have overriding effect over any other law for the time being in force,
in case of any inconsistency.
38. In view of the above statutory provisions, it is clear that once
the act committed by the appellant constitutes an offence under both
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Section 376 of IPC and Section 6 of the POCSO Act, the learned
Trial Court was required to award punishment only under Section 6
of the POCSO Act.
39. Accordingly, the sentence awarded under Section 376 of IPC is
not sustainable in law and deserves to be set aside. However, the
sentence awarded to the appellant for offence under Section 6 of the
POCSO Act is upheld. The order on sentence dated 16.01.2025 is
modified to this limited extent.
40. In view of the above, the present petition, along with pending
application, stands disposed of.
41. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
JULY 21, 2025/zp
TD
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By:ZEENAT PRAVEEN
Signing Date:24.07.2025
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