Delhi High Court – Orders
State vs Sanjay Kumar on 19 May, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 221/2020
STATE .....Petitioner
Through: Mr. Mukesh Kumar, APP for State
with Ms. Pooja, SI, PS-Bhalaswa
Dairy.
versus
SANJAY KUMAR .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 19.05.2025
1. The present application under Section 378(3) seeks leave to appeal
against judgment dated 31st August, 2019 passed by ASJ-06 POCSO
(North), Rohini Courts, Delhi in Sessions Case No. 58032/2016, emanating
from FIR No. 22/2013 registered at PS, Bhalswa Dairy, Delhi. By the
impugned judgment, the Trial Court has acquitted the Respondent for the
offences under Section 342 of Indian Penal Code, 18601 read with Sections
8 and 12 of the Protection of Children from Sexual Offences Act, 20122
2. Briefly, the facts of the case are as follows:
2.1 On 22nd January, 2013, on receipt of DD No. 72B, ASI Kanti Prasad
along with a constable proceeded to a locality in Mukund Pur, Delhi, where
a minor girl, then studying in Class XI had alleged wrongful restraint by her1
“IPC”
2
“POCSO”
CRL.L.P. 221/2020 Page 1 of 11
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landlord (the Respondent). It was alleged that the landlord had locked the
staircase door, thereby confining the victim and her younger sister to their
room. Upon arrival, the police officers facilitated the unlocking of the door,
allowing the victim and her sister to exit.
2.2 On the following day, the complainant/victim registered the compliant
in the presence of her mother. She stated that she along with her family
resided as tenants in the room on the upper portion of the house owned by
the Respondent and that the kitchen of the house was located on the ground
floor. She stated that on 22nd January, 2013, at 7:30PM, when her mother
was away for work and she was present along with her younger sister, the
Respondent, Sanjay Kumar locked the gate of the staircase in the house.
2.3 She stated that when she called out to the Respondent, requesting him
to open the gate, he refused and instead started abusing her and her sister.
Thereafter, she called contacted the police helpline number – 100 and a PCR
van arrived. In the meantime, the Complainant also informed her mother of
the incident. When her mother came back and asked the Respondent as to
why he had locked the minor girls upstairs, he started abusing her mother as
well.
2.4 The Complainant further alleged that the Respondent had previously
harassed her and had exhibited inappropriate behaviour towards her. She
stated that on an earlier occasion, the Respondent cut the electricity
connection of the rental unit where the Complainant was residing, entered
the room and sexually assaulted her. Further, she alleged that the
Respondent used to threaten her and her mother with dire consequences.
2.5 Based on her statement, the present FIR was registered. Initially, the
case was booked under Sections 342, 354, 451, and 509 of the IPC, along
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with Section 23 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 and Sections 8 and 12 of the POCSO Act. However, at the stage
of framing of charge, the Trial Court confined the charges to Section 342
IPC and Sections 8 and 12 of the POCSO Act.
2.6 During trial, the prosecution presented documentary evidence and
examined 11 witnesses, including material witnesses such as PW1 Niranjan
Lai Kaushal (Manager from victim’s school), PW2 “SK” (victim), PW3
“RU” (mother of victim), PW5 (SI Satbir Singh, In-charge PCR van) and
PW9 (ASI Kanti Prasad, First Investigating Officer).
2.7 In his statement under Section 313 of the Cr.P.C., the Respondent
denied the evidence against him and maintained that he was innocent and
had been falsely implicated in the present case. In defence evidence, the
Respondent examined himself as DW1. He stated during examination that
the mother of the victim/complainant was his tenant, and she was unlawfully
occupying the rented premises as she had not paid rent for over three years.
He contended that a civil suit for possession had already been instituted by
him against her, and the present FIR was filed only as a counter-blast to
pressurise him into withdrawing the said proceedings.
2.8 After consideration of all of the evidence brought on record, the Trial
Court, acquitted the Respondent finding infirmities and contradictions in the
case of the prosecution.
2.9 Aggrieved by the said acquittal, through the present application, the
State seeks leave to appeal.
3. Mr. Mukesh Kumar, APP for State, submits that the view taken by the
Trial Court is unsustainable, being founded on conjectures and
misappreciation of material evidence. He urges the following grounds in
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support of the plea for grant of leave to appeal:
3.1 A bare perusal of the judgment reveals that the Trial Court failed to
evaluate the prosecution’s evidence in its proper perspective. Vital and
cogent evidence, which ought to have led to the conviction of the
Respondent, was either disregarded or inadequately appreciated. The
reasoning adopted for acquittal is premised more on assumptions than a fair
appreciation of the testimonies on record.
3.2 Insofar as charge under 342 of IPC, is concerned, it is submitted that
the consistent and unrebutted depositions of PW2 (the victim), PW3 (her
mother), and PW5 (SI Satbir Singh, PCR) clearly establish that the
Respondent had wrongfully restrained the victim by locking the staircase
from the outside. PW5 specifically deposed that he had summoned the
Respondent to unlock the gate, which the Respondent did, indicating that he
alone was in control of the means of egress from the upper floor. This
squarely fulfils the ingredients of wrongful restraint under Section 342 IPC,
and the Trial Court failed to return findings thereon in accordance with law.
3.3 The Trial Court failed to properly appreciate the deposition of PW2,
the victim, who in clear and unambiguous terms deposed that the
Respondent had previously entered the rented room after disconnecting the
electricity supply, and had sexually assaulted her by touching her breasts.
Then the Respondent also caught hold of her hand and attempted to take her
into another room, to which she objected and raised an alarm. These
allegations, which the victim reiterated even during cross-examination,
constitute specific acts that attract the rigour of Sections 8 and 12 of the
POCSO Act. The blanket rejection of this testimony, despite its consistency,
has led to a miscarriage of justice.
CRL.L.P. 221/2020 Page 4 of 11
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3.4 The testimony of PW2 (victim) remained consistent on all material
points throughout the different stages of the trial. Moreover, she implicated
the Respondent with certainty and attributed the specific role to him. There
is no discernible reason on record to discard her testimony, particularly
given the settled position of law that the testimony of a child victim, if found
to be reliable and credible, can form the sole basis for conviction.
3.5 The Trial Court, erred in holding that there is an unexplained delay in
registration of the FIR. It is contended that the explanation offered by the
victim, that she waited for her mother’s return before proceeding to the
police station, is both reasonable and expected in the circumstances of the
case, where the minor girl was alone at the time of the incident. In cases
involving sexual assault, especially where the victim is a child, delay in
reporting is not uncommon and cannot be a ground for doubting the veracity
of the complaint. Reliance is placed on the judgment of the Supreme Court
in Satpal Singh v. State of Haryana3 wherein it was held that delay in
lodging an FIR in cases of sexual offences should be viewed in the context
of prevailing social sensitivities and the trauma experienced by the victim.
3.6 The perusal of the evidence in the present case clearly brings out a
case of conviction against the Respondent under Sections 342 of IPC and
Sections 8 and 12 of POCSO Act.
Analysis
4. The Court has considered the submissions advanced the State and
carefully perused the impugned judgment and the record of the case. At the
outset, it is necessary to recall the general principles governing the appellate
court’s jurisdiction in matters involving an appeal against acquittal. In
CRL.L.P. 221/2020 Page 5 of 11
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Chandrappa v. State of Karnataka4, Supreme Court elucidated the
governing principles in such cases as follows:
“42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while dealing
with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction
or condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, “substantial and compelling reasons”,
“good and sufficient grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of “flourishes of language” to
emphasise the reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.”
5. While the appellate court’s powers under Section 378 of the Cr.P.C.
are indeed broad, the threshold for granting leave to appeal under sub-
section (3) is more circumscribed. In State of Maharashtra v. Sujay
3
2011 (2) ACR 1387
4
(2007) 4 SCC 415
CRL.L.P. 221/2020 Page 6 of 11
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Magnesh Poyarekar5, the Supreme Court clarified that at the stage of
considering whether to grant leave, the Court is not to test whether the
impugned order is perverse or legally unsustainable on its face. Rather, the
guiding principle is whether the material on record raises an arguable case
that merits reappreciation. The Court held:
“19. Now, Section 378 of the Code provides for filing of appeal by the
State in case of acquittal. Sub-section (3) declares that no appeal “shall
be entertained except with the leave of the High Court”. It is, therefore,
necessary for the State where it is aggrieved by an order of acquittal
recorded by a Court of Session to file an application for leave to appeal
as required by sub-section (3) of Section 378 of the Code. It is also true
that an appeal can be registered and heard on merits by the High Court
only after the High Court grants leave by allowing the application filed
under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite
leave should or should not be granted, the High Court must apply its
mind, consider whether a prima facie case has been made out or
arguable points have been raised and not whether the order of acquittal
would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of
universal application that each and every petition seeking leave to
prefer an appeal against an order of acquittal recorded by a trial court
must be allowed by the appellate court and every appeal must be
admitted and decided on merits. But it also cannot be overlooked that at
that stage, the court would not enter into minute details of the
prosecution evidence and refuse leave observing that the judgment of
acquittal recorded by the trial court could not be said to be “perverse”
and, hence, no leave should be granted.
…xx… …xx… …xx…
24. We may hasten to clarify that we may not be understood to have
laid down an inviolable rule that no leave should be refused by the
appellate court against an order of acquittal recorded by the trial court.
We only state that in such cases, the appellate court must consider the
relevant material, sworn testimonies of prosecution witnesses and
record reasons why leave sought by the State should not be granted and
the order of acquittal recorded by the trial court should not be
5
(2008) 9 SCC 475
CRL.L.P. 221/2020 Page 7 of 11
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disturbed. Where there is application of mind by the appellate court and
reasons (may be in brief) in support of such view are recorded, the order
of the court may not be said to be illegal or objectionable. At the same
time, however, if arguable points have been raised, if the material on
record discloses deeper scrutiny and reappreciation, review or
reconsideration of evidence, the appellate court must grant leave as
sought and decide the appeal on merits.”
[Emphasis supplied]
Thus, the standard is not whether the judgment is manifestly erroneous, but
whether it warrants a second look based on the nature and quality of the
prosecution evidence.
6. At this stage the Court has to consider whether on a prima facie
appreciation of the impugned order and the material on record, a case has
been made out for exercise of jurisdiction under Section 378(3) to grant
leave to appeal against the acquittal. At the same time, it bears reiteration
that an order of acquittal carries a double presumption of innocence, and
where two views are reasonably possible, the view favouring the accused
must ordinarily prevail.
7. Turning to the facts of the present case, it is relevant to note that the
age of the victim, found to be below 18 years by the Trial Court, is not in
dispute. The central issue, rather, was whether the Respondent had
wrongfully restrained the minor victim on the date of the incident, and
whether there was credible evidence of prior sexual misconduct attributed to
him by the Complainant.
8. Upon a careful reading of the Trial Court’s judgment, this Court finds
that the acquittal was not based on conjecture, but upon a reasoned
appreciation of the evidentiary record. The Trial Court closely scrutinised
the depositions of prosecution witnesses and found material contradictions,
coupled with an unexplained delay in reporting the offence, both of which
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cast a shadow of doubt on the prosecution’s case. The relevant findings of
the Trial Court are extracted below:
“25. In the light of above evidence, it is clear that there is unexplained
delay in registration of FIR. As per the testimony of PW9 ASI Kanti
Prasad on 22.01.2013, he received a call i.e. DD No. 72B and reached
the residence of the victim. As per DD no. 72B, information regarding
incident was registered at 9:04 PM. However, the victim did not make
any complaint on 22.01.2013. The victim made her complaint only on
the next day i.e. on 23.01.2013 on the basis of which the present FIR
was registered. There is no explanation given by the prosecution or by
the complainant for delay in registration of FIR.
26. Further, as per the testimonies of prosecution witnesses ASI Kanti
Prashad was the first person who reached the spot of incident after the
DD was marked to him on the call of the complainant; But, the
complainant did not disclose any facts regarding commission of
offence to him. As per the testimony of PW9 ASI Kanti Prasad, he found
the complainant to be matured and understanding. As per the testimony
of PW9 ASI Kanti Prashad, when he asked the victim about her
complaint, the complainant told him that the landlord was misbehaving
with her mother as such her mother could only give information
regarding the allegations. No allegations regarding the wrongful
restraint or the sexual harassment were made by the victim at the first
instance to the first IO ASI Kanti Prashad. A perusal of DD No. 72B
also reveals that no allegations regarding sexual harassment were
made by the complainant when she made call to the police. There is no
explanation tendered by the victim or her mother why the allegations the
accused is charged with were not made by the victim to the first IO when
he reached at the spot on her call.
27. The victim only gave her statement on the next day and the theory
of afterthought allegations is not ruled out by the prosecution.
Therefore, benefit of doubt goes in favour of the accused.
28 Furthermore, there are certain contradictions in the case set up by the
prosecution. As per testimonies of PW2 ‘SK’ and PW3 ‘RU’ (mother of
the victim), when she reached the spot, police was already present
there. However, as per testimony of PW9 ASI Kanti Prasad when they
reached the spot after receiving the DD, the victim had stated that her
mother was not present and she would give her statement in the police
station when her mother would arrive and thereafter, they (police
officials) returned back to the police station. It seems that PW3 RU has
tried to show that she had reached the spot at the time of incident
whereas as per testimony of PW9, she was not there.
CRL.L.P. 221/2020 Page 9 of 11
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29 Except the victim ‘SK’ (PW2), no other witness to the alleged incident
has been examined by the prosecution. As per the testimony of PW2
(victim), her younger sister was present at the spot at the time of
alleged incident. However, the prosecution has not made younger sister
of the victim a witness nor examined her. Rather, the prosecution has
chosen to make mother of the victim a witness in this case who was not
even present at the spot and her testimony is just hearsay evidence and
cannot be relied upon.”
[Emphasis supplied]
9. This reasoning is further corroborated by the Trial Court’s
observations that the victim first made a police call on 22nd January, 2013,
yet no complaint was lodged that day. It was only on 23rd January, 2013,
after an intervening delay and in the presence of her mother, that a formal
statement was recorded. In cases involving sexual offences, Courts are
undoubtedly mindful of the psychological and social reasons that may cause
delay in disclosure. However, in the present case, the delay is accompanied
by notable omissions: the victim, described by the IO as mature and capable
of understanding, did not disclose the allegations of sexual assault to the
police officer who responded immediately to her distress call, and instead
referred only to a dispute involving her mother.
10. It is also significant that the alleged incident of prior sexual assault
admittedly occurred months earlier, on 6th October, 2012, but was not
reported until 23rd January, 2013, and no explanation was offered as to why
such grave allegations were withheld for an extended period. The first
version offered to the police omitted this crucial detail altogether,
undermining the credibility of the subsequent narrative.
11. Furthermore, the prosecution failed to examine a key eyewitness, the
younger sister of the victim, who was admittedly present at the time of the
incident on 22nd January, 2013. Instead, the prosecution relied on the
CRL.L.P. 221/2020 Page 10 of 11
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deposition of the victim’s mother, who was admittedly not present at the
scene and whose testimony is therefore hearsay in nature. The omission to
produce the sister as a witness, despite her relevance, weakens the
evidentiary value of the prosecution’s case and lends weight to the Trial
Court’s conclusion that there were lacunae in the prosecution’s version.
12. This Court is conscious of the principle that a delay in lodging the
FIR, by itself, is not fatal to the prosecution, particularly in cases involving
sexual offences. However, when the delay is coupled with material
inconsistencies and unexplained omissions at crucial stages of investigation,
as in the present case, it becomes a significant factor in determining whether
the prosecution has discharged the burden of proof beyond reasonable doubt.
13. In light of the above, this Court finds that the Trial Court’s findings
were based on a sound appreciation of the evidence on record. The view
taken by the Trial Court may not be the only possible view, but it is certainly
a plausible and reasonable one in the facts of this case. Consequently, no
prima facie case has been made out for grant of leave to appeal under
Section 378(3) of the Cr.P.C.
14. Accordingly, the leave to appeal sought by the State is denied and the
present petition is dismissed along with any pending applications.
SANJEEV NARULA, J
MAY 19, 2025
nk
CRL.L.P. 221/2020 Page 11 of 11
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