Ms. Cauveri Birbal, Mr. Kamlendu Pandey, Ms. Nistha Dhall, Advocates v. STATE on 23 Sep 2025

Judgment

1. The present appeal under Section 415(2) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 20231 (erstwhile Section 374(2) read with Section 482 of the Code of Criminal Procedure, 19732) is directed against judgment of conviction dated 07th September, 2024 and order on sentence dated 06th November, 2024 passed by the ASJ-05 (POCSO) North- West, Delhi in SC No. 288/2018 titled “State v. Chand Miyan”. The said proceedings emanate from FIR No. 147/2018, registered at P.S. Alipur for the offences under Sections 342, 366(A) and 377 of the Indian Penal Code, 1 “BNSS” 2 “Cr.P.C.” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 1 of 28 18603 and Section 6 of the Protection of Children from Sexual Offences Act,

2010.4 FACTUAL BACKGROUND

2. The case of the Prosecution, in brief, is as follows:

2.1. On 1st April, 2018, a complaint was lodged by the Prosecutrix, alleging that on the said day, at approximately 1:00 P.M., while she had gone to purchase daal, she was accosted by the Appellant, Chand Miya, who was her neighbour and engaged in kabaadi kaam (scrap dealing). He forcibly grabbed her and took her to a nearby godown. It is further alleged that he shut the door, forcibly grabbed the Prosecutrix and covered her mouth. He then removed his own lower garments as well as those of the Prosecutrix, made her lie face down on the floor, and attempted anal penetration, and everything got wet. The Prosecutrix attempted to flee; however, she was unable to do so as the Appellant had latched the door of the godown. Thereafter, the Appellant allegedly handed her a sum of ₹10. The Prosecutrix rushed home and narrated the incident to her mother, who informed the police, leading to the registration of the FIR.

2.2. The Prosecutrix was taken to BSA Hospital, where her medical examination was conducted, and findings recorded vide MLC No. 749/2018. During examination, she reiterated her allegations. The MLC mentions mild redness on the labia majora and minora, with the hymen found intact. No redness or tear was observed in the perineal region.

2.3. During investigation, the statement of the Prosecutrix under Section 164 Cr.P.C. was recorded. She stated that the Appellant had taken her to the 3 “IPC” 4 “POCSO” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 2 of 28 godown, bolted the door, removed her lower garments as well as his own, and committed anal penetration. She added that immediately thereafter, when the Appellant released her, she managed to unbolt the door by removing a brick and ran to her mother. Her mother thereafter went to confront the Appellant but he had absconded by then. She also clarified that there was no bleeding and that although she was not otherwise assaulted, she had sustained bruises in the assault.

2.4. Upon conclusion of investigation, chargesheet was filed before the concerned Court. Thereafter, vide order on charge dated 18th July, 2018, charges were framed against the Appellant under Sections 363/342/376(2) of the IPC and Section 6 of the PCOSO Act. The Appellant pleaded not guilty and clamed trial.

2.5. In support of their case, the Prosecution examined fourteen witnesses, comprising the Prosecutrix, her mother and her teacher, the investigating officers, the Appellant’s brother, and the forensic examiner. For clarity and ease of reference, the witnesses are summarised in the table below: PW No. Name / Description Role / Deposition PW-1 The Prosecutrix PW-2 Teacher of the Prosecutrix PW-3 ASI Narender Kumar PW-4 HC Praveen PW-5 Mother of the Prosecutrix PW-6 Dr. Mini, BSA Hospital PW-7 Raju @ Chhote Khan PW-8 SI Shivdeep Singh

Complainant; alleged sexual assault; statement under Section 164 CrPC. Produced school records; DOB: 1st October, 2010. Posted at P.S. Alipur, received the PCR call, recorded DD entry 18A. Deposited the samples with FSL Rohini. Called the Police on 100 number; corroborated disclosure. Proved the MLC. Brother of the Appellant; claimed ownership of the warehouse. Received the rukka; FIR registered under his Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 3 of 28 PW No. Name / Description Role / Deposition PW-9 Ct. Tara Chand PW- 10 PW- 11 PW- 12 PW- 13 PW- 14 Ct. Shashi Ct. Amit SI Ravinder Manisha Upadhyaya, Assistant Director, Biology, FSL Rohini SI Tejwati, Investigating Officer supervision. Met the Prosecutrix and her mother; collected the rukka. Went with the Prosecutrix to BSA Hospital and got her MLC conducted. Arrested the Appellant, along with the IO; got his MLC conducted from SRHC Hospital. Went to the spot along with PW-9; took the Prosecutrix and her mother to BSA Hospital. Conducted biological analysis of exhibits. Conducted investigation; collected evidence; filed chargesheet.

2.6. After closing of Prosecution evidence, the statement of the Appellant was recorded under Section 313 Cr.P.C. All incriminating circumstances appearing in the record were put to him. The Appellant denied the allegations in toto, asserting that he had been falsely implicated, likely due to prior animosity. In support of his defence, he examined his brother, Salim Mohammad, as DW-1. The defence witness deposed that the godown in question was being used as a residential premises occupied by 10-12 persons, and further claimed that the Prosecutrix’s mother, seeking to conceal her prior association with the Appellant, had orchestrated his false implication.

2.7. Upon determination of the age of the Prosecutrix, the depositions of witnesses, and the medical evidence brought on record, the Trial Court held that the Prosecution had succeeded in proving their case. By judgment dated 7th September, 2024, the Appellant was convicted for the offences punishable under Section 6 of the POCSO Act and Sections 363/342/376(2) of the IPC. By the order on sentence dated 6th November, 2024, he was Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 4 of 28 sentenced to undergo simple imprisonment for a period of 3 years for the offence under Section 363 IPC, along with a fine of ₹500/-, and default sentence of 15 days; simple imprisonment for a period of 6 months under Section 342 IPC, along with a fine of ₹500/-, and default sentence of 15 days; and rigorous imprisonment for a period of 10 years under Section 376(2) IPC, along with a fine of ₹1,000/-, and default sentence of 30 days. The said sentences were directed to run concurrently, and benefit of Section 428 Cr.P.C was granted to the Appellant. The order on sentence also clarified that the Appellant has not been convicted separately for the offence under Section 6 of POCSO Act, in view of Section 42 of the POCSO Act and Section 71 of IPC. Further, apart from the sentence, compensation was also awarded to the Prosecutrix. APPELLANT’S CASE

3. Ms. Cauveri Birbal, counsel for the Appellant, assails the conviction and sentence on multiple grounds, urging that the impugned judgment suffers from grave infirmities and rests on assumptions rather than reliable proof. Her submissions are summarised below:

3.1. The Trial Court failed to appreciate that the testimonies of the Prosecutrix (PW-1) and her mother (PW-5) are marred by serious contradictions and material inconsistencies. In such circumstances, it was unsafe for the Trial Court to base the conviction solely on uncorroborated testimony of a child of tender age, without sufficient corroborative evidence to inspire confidence in the Prosecution’s case.

3.2. The Prosecutrix, in her complaint (Ex. PW-1/A), alleged that the Appellant attempted to insert his penis into her anus. However, in her statement recorded under Section 164 Cr.P.C. as well as during her Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 5 of 28 examination-in-chief, she alleged actual penetration, specifically stating that the Appellant had forcefully inserted his private part into her anus. The inconsistency on the critical aspect of penetration, undermines the reliability of her testimony.

3.3. Further, the MLC of the Prosecutrix (Ex. PW-6/A) does not record any injury, bleeding, or tear in the perineal region. Therefore, the allegation of penetration is not corroborated by the evidence on record. Given that the Appellant is a fully grown adult and the Prosecutrix is of tender age, some injury would ordinarily be expected if penetration had indeed occurred. In this backdrop, the mere matching of DNA profiles of the clothes worn by the Appellant and the Prosecutrix cannot conclusively establish penetration. In this regard, reliance is placed in Abhay Singh v. State,5 wherein this Court observed that the absence of injuries in the genital region casts doubt upon the allegation of penetration by an adult male. The relevant observation reads follows: “36, Since the report of the chemical examiner Ex. 14/F shows the presence of semen on the clothes and vaginal swab but the medical evidence as recorded in the MLC Ex. PW8/A does not show that the private part of the victim had any mak of violence. Had there been penetration by a fully grown up person like her father, even the slightest penetration would have caused some injury in its attempt to enter the child’s vagina”.

3.4. PW-1, in her cross-examination, admitted that a dispute had taken place between her mother and the Appellant approximately one year prior to the date of the alleged incident, indicating prior animosity. It is further submitted that the Appellant and the mother of the Prosecutrix were known to each other and were relatives. This relevant aspect was overlooked by the 5 Criminal Appeal 968/2015, decided on 26th July, 2017. Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 6 of 28 Trial Court.

3.5. The mother of the Prosecutrix, in her cross-examination, deposed that although she had known the Appellant for several years prior to the alleged incident, he did not visit their house frequently. However, it is submitted that the maternal uncle (mama) of the Appellant and the mother of the Prosecutrix belong to the same village. Further, contrary to her deposition, the Appellant used to frequently visit the house of the Prosecutrix.

3.6. PW-7, Raju @ Chhottey Khan, did not support the case of the Prosecution. He deposed that he had, in fact, stopped his brother, i.e., the Appellant, from sitting at the godown as well as the kabari shop prior to the alleged incident.

3.7. The FSL Report (Ex. PW-13/A) cannot be treated as conclusive proof to establish the guilt of the Appellant. PW-13, who proved the FSL Report, admitted in her cross-examination that the time, period, and age of the stains found on the clothes of the Prosecutrix and on the gauze cloth piece attributed to the Appellant were not examined. Further, there was a delay of approximately 15 days in sending the exhibits to the FSL, raising a serious doubt as to the possibility of tampering or compromise of the integrity of the exhibits.

3.8. It is the case of the Prosecution that the Appellant abducted the Prosecutrix in broad daylight and took her to a godown. However, the IO did not record the statement of any independent witness to corroborate this claim. Furthermore, no effort was made to inquire with shopkeepers or other individuals in the vicinity of the alleged place of occurrence, despite the location being in a public area with nearby commercial establishments.

3.9. The Trial Court failed to properly appreciate the statement of the Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 7 of 28 Appellant recorded under Section 313 Cr.P.C., wherein he suggested that the present case was registered on the basis of false and incorrect information provided by the Prosecutrix and her mother, possibly due to prior enmity. The Trial Court further erred in disregarding the testimony of DW-1, Salim Mohammad, the brother of the Appellant, solely on the ground that he was an interested witness, without assigning adequate reasons for the same.

3.10. The Trial Court failed to appreciate that no proper site plan of the alleged place of incident was filed by the IO. Preparation of a site plan is not a mere procedural formality; rather, it is a critical component of the investigation, enabling the Court to arrive at a fair and reasoned conclusion regarding the commission of the alleged offence and the involvement of the accused. Reliance is placed on the judgement of the Supreme Court in Singhara Singh Vs. State of Haryana.6

3.11 Without prejudice to the above submissions, it is contended that even if the Prosecution’s case is accepted at its highest, the conviction under Section 6 of the POCSO Act is unsustainable. At most, the facts may constitute an offence under Section 7 of the POCSO Act (sexual assault), punishable under Section 10. It is further submitted that the Appellant has already undergone seven years of incarceration, which is the maximum sentence prescribed for the offence of aggravated sexual assault under Section 10 of the POCSO Act. RESPONDENTS’ CASE

4. On the other hand, Mr. Amit Ahlawat, APP for the State, and Mr. Deepal Goel, counsel for the Prosecutrix, oppose the appeal and support the findings of the Trial Court. Their submissions are summarised as follows: 6 AIR 2004 SC 124. Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 8 of 28

4.1. The statement of the Prosecutrix is of sterling quality. She has narrated the incident in a clear, consistent, and detailed manner. Her testimony, when read in conjunction with the scientific evidence on record, clearly establishes the commission of aggravated penetrative sexual assault. The law does not require corroboration of the testimony of the Prosecutrix if her evidence inspires confidence. Reliance is placed on the settled principle that the testimony of a Prosecutrix, if found credible, can form the sole basis of conviction. It is further contended that, considering the tender age of the Prosecutrix and the trauma she underwent, minor discrepancies, if any, in her statement ought not to dilute the overall credibility of her testimony.

4.2. The Defence has failed to confront the Prosecutrix with the alleged contradictions between her complaint, her statement recorded under Section 164 Cr.P.C. and her testimony before the Court. As such, the argument regarding inconsistencies is devoid of merit and cannot be raised at the appellate stage.

4.3. The contention that the FSL report lacks credibility is without merit. The expert witness (PW-13) was not subjected to meaningful cross- examination on the findings. In such circumstances, the Appellant cannot be permitted to question the reliability of scientific evidence at the appellate stage. In support, reliance is placed on a judgment of the High Court of Meghalaya in Shri Thoura Darnei v. State of Meghalaya.7

4.4. The medical evidence does not negate the case of the Prosecution. It is well settled that absence of visible injuries or tearing is not decisive, particularly in cases of sexual assault on a minor. The MLC recorded redness on the genital area, which lends support to the Prosecutrix’s account. 7 Crl.A. No. 37/202. Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 9 of 28 Courts have repeatedly held that lack of injuries cannot, by itself, discredit the testimony of a victim of sexual assault, more so when the victim is a child.

4.5. On the issue of penetration, it is contended that the Prosecutrix has consistently maintained, both under Section 164 Cr.P.C. and during trial, that penetration had, in fact, occurred. The complaint made immediately after the incident reflected her immature articulation of the act, but her subsequent statement and testimony provided clarity. Minor variations in expression of a child victim, it is urged, cannot be treated as contradictions. ANALYSIS

5. The Appellant stands convicted for aggravated penetrative sexual assault upon a child. Before turning to credibility, medical and scientific evidence, it is necessary to settle the question of age; the answer triggers the statutory provision and the reverse-burden framework under the POCSO Act. Age of the Prosecutrix

6. To establish the age of the Prosecutrix, the Prosecution examined PW-2, a teacher from the school attended by the Prosecutrix. PW-2 produced school records which reflect the date of birth of the Prosecutrix as 1st January, 2010. These documents were neither objected to by the Defence during cross-examination nor was any suggestion made challenging the authenticity or reliability of the said records. The incident in question occurred on 1st April, 2018. Accordingly, the Prosecutrix was 8 years and 3 months old at the time of the alleged incident and, therefore, falls within the definition of a “child” under Section 2(1)(d) of the POCSO Act.

7. Once minority is established, Section 29 POCSO raises a presumption Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 10 of 28 that the accused committed the charged sexual offence(s), and Section 30 deals with culpable mental state. That presumption is not absolute: it arises only after the Prosecution proves the foundational facts (including the child’s age, identity of the accused, and the factum of the sexual act alleged). Thereafter, the accused may rebut on a preponderance of probabilities; but Section 29 never relieves the prosecution of first establishing that factual substratum. Courts across jurisdictions, including the Supreme Court, have underscored this two-stage analysis, while upholding the constitutionality of the reverse burden.8

8. The Court must now test whether the Prosecution discharged its initial burden through reliable primary facts (age already answered above, with the remaining foundational elements addressed when analysing the testimony, MLC, site evidence and FSL results). Second, if the foundation stands, the Court shall then examine whether the defence, taken as a whole, including the Section 313 Cr.P.C. statement and DW-1’s testimony, rebuts the presumption on a balance of probabilities. In these inquiries, settled principles remain constant: the testimony of a sexual-assault survivor needs no corroboration if it inspires confidence; absence of visible injuries is not, by itself, exculpatory, especially where the victim is a child. Statements of the Prosecutrix - credibility and consistency

9. Four contemporaneous accounts of the Prosecutrix are available: the initial complaint (Ex. PW-1/A), the history recorded in the MLC (Ex. PW- 6/A), the statement under Section 164 Cr.P.C. (Ex. PW-1/B), and the deposition at trial. The Prosecutrix, in her complaint (PW-1/A), alleged that on 1st April, 2018, at around 1.00 P.M., while she had gone to purchase daal, 8 Just Rights for Children Alliance v. S. Harish, 2024 SCC OnLine SC 2611. Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 11 of 28 she was approached by the Appellant, who forcibly grabbed her and took her to a nearby godown. It is further alleged that he shut the door and covered her mouth. He then removed his lower garments as well as those of the Prosecutrix and made her lie down on the floor in a prone position. Thereafter, he attempted to insert his penis into the anus of the Prosecutrix, and everything got wet. The Prosecutrix tried to escape; however, she was unable to do so as the Appellant had latched the door of the godown. Thereafter, the Appellant handed her a sum of ₹10. Following the incident, the Prosecutrix rushed home and narrated the events to her mother, who then called the police.

10. Pursuant to the lodging of the FIR, the Prosecutrix was taken to BSA Hospital for her medical examination vide MLC No. 749/2018. There, the Prosecutrix recorded her history as: “she was going to shop this afternoon. A person named Chand Miya absconded her & took her to godown near the place. He shut the door & removed her clothes & tried to insert his penis into her vagina & anus. She was shouting, he left out of fear & left her in the godown. She herself went to home & told her father & mother about this event.”

11. In her subsequent statement recorded under Section 164 Cr.P.C., the Prosecutrix stated that her mother had asked her to purchase masoor dal from a nearby shop and that she was carrying ₹50 with her at the time. She further stated that the Appellant approached her from behind, covered her mouth, lifted her, and took her to his godown, where no one else was present. It is stated that the Appellant then closed the door, removed the Prosecutrix’s payjami as well as his own lower garments, and inserted his genital organ into her anus. The Prosecutrix further mentioned that as soon Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 12 of 28 as the Appellant released her, she opened the door by removing a brick and immediately ran to her mother. She also stated that her mother attempted to confront the Appellant, but he had already absconded from the premises. Upon specific inquiry by the Magistrate, the Prosecutrix clarified that she did not bleed, nor was she physically assaulted by the Appellant, but she did sustain bruises during the incident.

12. When examined as PW-1 before the Trial Court, the Prosecutrix deposed that the Appellant, after taking her to the godown, compelled her to lie face down in a prone position. Thereafter, he inserted his penis into her anus, causing her severe pain and resulting in everything becoming wet. The material part of her testimony is extracted below for reference: “Issi saal 4-5 mahine pehle garmiyon ke din the, ek din mein dopehar ke samai apni mummy ke kehne per daal lene dukan per jaa rahi thi, toh muljim Chand Miyan, jo ki aaj adalat main hajir hai (witness has correctly identified accused Chand Miyan through wooden partition) jo ki hamare pados main rehta hai, ne mujhe pakad liya aur mujhe apne kabad ki godown main Ie gaya, aur fir ussne darwaja ander se band karke mujhe ander band kar diya tha aur darwaje per iint (brick) laga di thi aur mera mooh daba diya tha, aur fir Chand Miyan ne meri pajami utaar di aur apna pajama bhi utaar diya, aur mujhe fursh per ulta laitakar jabardasti mere latrin ke raaste main apni susu kame wali jageh ghhusa di. Mujhe bahut dard hua tha, aur fir sab geela-geela ho gaya. Chand Miyan ne mujhe Rs. 10/- diye aur kaha ki apni mummy ko kuch mut batana. Mein Darwaja kholkar iint (brick) hatakar, bhagkar apni mummy ke pass gayi aur unhe saari baaten batayi. Meri mummy chappal lekar Chand Miyan ko maarne gayi thi. Raaste main ek aunti puch rahi thi ki kya hua toh meri mummy ne kaha tha ki dekho Chand Miyan ne isske saath kya kar diya. Muljim Chand Miyan, hamen godown per nahi mila, wo wahan se bhag gaya tha.”

13. Read together, these statements demonstrate a consistent and coherent narrative implicating the Appellant in acts of sexual assault. The Prosecutrix has provided a detailed and consistent account of the sequence of events across multiple statements, which lends credibility to her version and Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:23.09.2025 19:12:38 CRL.A. 98/2025 Page 13 of 28 supports the conclusion that the Appellant committed acts amounting to sexual assault upon her.

14. The defence has sought to capitalise on two variations: first, that the complaint and the MLC history describe only an “attempt” at insertion, whereas the Section 164 Cr.P.C. statement and deposition speak of actual anal penetration; and second, that the MLC history refers to “vagina and anus,” while the complaint and subsequent accounts specify the anus alone. These differences are not material. The first account of a traumatised child cannot be expected to provide a precise, clinical description of penetration; it is well recognised that clarity often emerges when the victim is questioned in a more secure setting such as before a Magistrate or in court. What is critical is that in her Section 164 Cr.P.C. statement and her deposition, the Prosecutrix consistently affirmed anal penetration.

15. As per Section 3 of the POCSO Act, even the slightest penetration of the anus amounts to penetrative sexual assault, and the law does not require visible injury to corroborate the fact of penetration. The Supreme Court has repeatedly cautioned against elevating peripheral discrepancies determinative contradictions when the core account of sexual assault remains intact and credible.9 In law, the testimony of a survivor of sexual assault, if credible, requires no mechanical corroboration and can form the sole basis of conviction. The Supreme Court has underscored this principle in Rai Sandeep v. State (NCT of Delhi),10 when characterising a “sterling witness”.

16. It must also be noted that the phrase “everything became wet,”11