Mr. Anwesh Madhukar, Ms. Prachi Nirwan and Mr. Pranjal Shekhar, Advocates v. STATE

Judgment

1. The Appellant assails the judgment dated 9th July, 2024, and the sentencing order dated 7th November, 2024, passed by ASJ-01 (POCSO), Patiala House Courts, New Delhi in Sessions Case No.213/2018. By the impugned judgment, he has been convicted for the offences under Section 376(2)(n)(k) of the Indian Penal Code, 18601 and Section 6 of Protection of Children from Sexual Offences Act, 20122 and sentenced to undergo 1 “IPC” 2 “POCSO” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:25.09.2025 20:43:41 CRL.A. 200/2025 Page 1 of 31 rigorous imprisonment for a period of 20 years.

2. The aforenoted decisions emanate from FIR No. 284/2018 dated 14th May, 2018, for the offences punishable under Sections 376/323/506 IPC and Section 6 POCSO registered at P.S. Vasant Kunj North. BRIEF FACTS OF THE CASE

3. The case of the prosecution, in brief, is as follows:

3.1. On 14th May, 2018, the aforesaid FIR was registered against the Appellant on the basis of a complaint lodged by his minor daughter, aged about 17 years at the time. She alleged that over a considerable period, the Appellant had subjected her to sexual assault while she was asleep and had used threats and violence to thwart disclosure. On the same day, she confided in doctors at Safdarjung Hospital, where she was medically examined. Information was then recorded as DD No. 35A dated 14th May, 2018 at P.S. Vasant Kunj North, leading to registration of the FIR. The MLC revealed a positive UPT. The Appellant was arrested the same day.

3.2. On 26th May, 2018, following the intervention of concerned authorities, a medical termination of pregnancy was conducted at Safdarjung Hospital, and the product of conception was seized under a memo. The Appellant’s medical examination was conducted on 15th May, 2018, and relevant samples were taken into police custody. The seized exhibits were then forwarded to the Forensic Science Laboratory3 for analysis. The victim’s 164 CrPC statement was recorded on 16th May, 2018. In its report dated 01st August, 2018, the FSL confirmed presence of semen in the vaginal and cervical mucus of the victim, and the DNA profile generated 3 “’FSL” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:25.09.2025 20:43:41 CRL.A. 200/2025 Page 2 of 31 was consistent with that of the Appellant. However, the report did not establish the Appellant as the biological father of the foetus. After

completion of investigation, a chargesheet was filed before the Trial Court on 10th July, 2018.

3.3. On 27th October, 2018, charges were framed against the Appellant under Sections 376(2)(i)(n)(k) and 323 IPC read with Section 5(m)(p)(j)(ii) of POCSO, punishable under Section 6 thereof. The Appellant pleaded not guilty and claimed trial.

3.4. The prosecution examined five witnesses. After closure of prosecution evidence, the Appellant’s statement under Section 313 CrPC was recorded, wherein he denied the allegations. No evidence was led in defence.

3.5. Upon appraisal of the evidence, the Trial Court held that the prosecution’s case stood proved. The testimony of the Prosecutrix was found natural, consistent, and credible. It was corroborated by the medical examination, the positive pregnancy test, and the forensic report establishing the presence of the Appellant’s semen in the collected samples. In the absence of any defence evidence or explanation under Section 313 CrPC sufficient to displace this body of proof, the Trial Court convicted the Appellant under Sections 376(2)(n)(k) IPC and Section 6 of POCSO. CONTENTIONS OF APPELLANT

4. The Appellant raises the following grounds in appeal:

4.1 The Trial Court erred in appreciating the victim’s 164 CrPC statement (Ex. PW-2/A), where no allegation was levelled against the Appellant but against neighbours, Lalu and Raju Yadav, who were not mentioned in her Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:25.09.2025 20:43:41 CRL.A. 200/2025 Page 3 of 31 prior complaint (Ex. PW-2/B). Later, in her deposition (10th April, 2019), she implicated both her neighbours and the Appellant, rendering her testimony unreliable. The Court itself noted that the witness spoke too fast, jumbling sentences, and seemed intent on narrating everything before forgetting.

4.2. The victim made material improvements over time. Neither in her complaint nor in her 164 CrPC statement did she mention the number of assaults, but in her deposition before the Court, she alleged being sexually assaulted on three occasions. Further, she also introduced allegations of unnatural sexual assault, which were absent from her earlier statements.

4.3. The victim’s competency is doubtful. She was diagnosed with anxiety disorder, evident from her testimony, where she recalled trivial details but failed to correlate major incidents. During her medical examination, she also alleged being assaulted for eight years, which was not the case in any of her other statements.

4.4. The victim’s MLC (Ex. PW-2/C) records no injuries, tears, or marks despite allegations of repeated assaults, contradicting the prosecution case. No evidence of trauma, laceration, or tenderness was noted in the genital region, nor were there external injuries consistent with the use of force.

4.5. The forensic report is unreliable. The FSL (Ex. PW-1/A) merely states that the DNA profile was “consistent” with the Appellant’s, which in scientific terms does not prove sexual assault but reflects the admitted father-daughter relationship. Expert opinion is only advisory and cannot be conclusive proof, yet the Trial Court treated it as determinative.

4.6. The Trial Court wrongly drew an adverse inference from the absence of cross-examination of PW-1 (Dr. Kamal Chauhan). This lapse was due to Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:25.09.2025 20:43:41 CRL.A. 200/2025 Page 4 of 31 lapse on the part of Legal Aid Counsel, for which the Appellant cannot be penalized. Being a layman, the Appellant could not have been expected to know the nuances of forensic procedure or to instruct counsel on the line of cross-examination. It is apparent that ineffective representation has deprived him of a fair trial.

4.7. The integrity of forensic samples is doubtful. The Seizure Memo (Ex. P/AD-13) notes the seal as “DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI”, while the FSL report (Ex. PW-1/A) refers to “MSL DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI” raising doubts of tampering. Moreover, although collected on 15th May, 2018, the samples reached FSL only on 28th May, creating a 13-day unexplained gap. This lapse heightens the possibility of tampering of the exhibits, particularly in the absence of a clear explanation or documentation demonstrating how the exhibits were safeguarded during this intervening period.

4.8. The investigation was perfunctory: despite the victim naming Ravi and Lalu Yadav in her 164 CrPC statement, no inquiry was made against them, showing selective prosecution of the Appellant.

4.9. The chain of custody was gravely compromised. Doctors who collected the exhibits of the Prosecutrix and the Appellant (i.e., Dr. Mukta Rawat and Dr. Zahid Ali, respectively) were not examined; the seizure memos do not record sealing; no road certificate or malkhana register entries were produced; Ct. Md. Alam, said to have transported exhibits, was not examined. These lapses undermine the evidentiary value of the FSL report.

4.10. The sentence imposed on the Appellant (20 years RI) is legally impermissible. Section 6 POCSO prescribes a minimum punishment of 10 years, which may extend to life imprisonment, but does not authorize fixed- Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:25.09.2025 20:43:41 CRL.A. 200/2025 Page 5 of 31 term sentences beyond this range. Relying on the decisions of the Supreme Court in Union of India v. V. Sriharan @ Murugan & Ors.4 and Ravinder Singh v. State Government of NCT of Delhi5, and especially on the decision of the High Court of Karnataka in Siddalingappa v. State of Karnataka6, it is urged that only Constitutional Courts can impose such fixed-term sentences, and not the Trial Court. The fixed-term of 20 years is beyond the statutory prescription as it existed then and is therefore liable to be set aside. CONTENTIONS OF RESPONDENTS

5. On the other hand, Mr. Mukesh Kumar, APP for the State, and Ms. Inderjeet Sidhu, counsel for the Prosecutrix, oppose the present appeal and submits as follows:

5.1. The statement of the Prosecutrix has remained consistent in all material particulars. In her deposition before Court, she categorically named the Appellant as the person who repeatedly subjected her to sexual assault.

5.2. The testimony of the Prosecutrix is further corroborated by the scientific evidence on record. PW-1, the expert from CFSL, categorically deposed that semen was detected in the vaginal swabs and that the DNA profile generated therefrom matched that of the Appellant. This constitutes decisive scientific corroboration of the Prosecutrix’s version and leaves no scope for doubt. The objection regarding an alleged break in the chain of custody of the exhibits is baseless. No such suggestion was put to any Prosecution Witness during cross-examination, and the Appellant cannot be permitted to raise this plea for the first time at the appellate stage.