Ms. Neha Kapoor and Mr. Kashal Mehta, Advocates v. STATE OF NCT OF DELHI

Judgment

1. This appeal under Section 415 of the Bharatiya Nagarik Suraksha Sanhita1 (corresponding to Section 374 of the Code of Criminal Procedure, 19732) arises from SC No. 7729/2016 relating to FIR No. 93/2016 dated 27th January, 2016, registered at P.S. Safdarjung Enclave for the offence under Section 363 of the Indian Penal Code, 18603. By judgment dated 30th 1 “BNSS” 2 “CrPC” 3 “IPC” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 1 of 27 November, 2024, the Additional Sessions Judge (SC – POCSO), South District, Saket Courts, New Delhi has convicted the Appellant under Sections 376(2)(i) and 366 of IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 20124. By a separate order dated 24th February, 2025, the Appellant has been sentenced to rigorous imprisonment for fourteen years and a fine of INR 50,000/- (in default, simple imprisonment for five months) for the offence under Section 376(2)(i) IPC and rigorous imprisonment for ten years with a fine of INR 10,000/- (in default, one month’s simple imprisonment) for the offence under Section 366 IPC. The sentences were directed to run concurrently. FACTUAL MATRIX

2. The case of the prosecution is as follows:

2.1. On 27th January, 2016, at about 10:06 PM, information regarding a missing girl was received at P.S. Safdarjung Enclave. The inquiry was marked to ASI Rajkumar who, along with Ct. Sanjay, reached the spot and met the Complainant (the victim’s cousin). The Complainant reported that the victim, a minor ‘B’ aged about 14 years, had gone to the market around 6:00 PM and had not returned.

2.2. FIR under Section 363 IPC was registered and investigation commenced. The child’s particulars were uploaded on ZIPNET, and hue- and-cry notices were circulated. On 28th January, 2016, while the police and the Complainant were near Humayunpur Red Light reviewing CCTV footage, the Complainant saw the victim on the road. She was taken to hospital for medical examination and inquiry. The doctor collected exhibits which were seized by the Investigating Officer. In her 161 CrPC statement, 4 “POCSO” Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 2 of 27 the victim stated that she was taken in a red car to an unknown location, wrongfully confined, administered an unknown substance, and sexually assaulted, before being dropped near Humayunpur Red Light. She also produced a handwritten slip allegedly given by the assailant, containing a mobile number and an e-mail ID, which was seized.

2.3. CDR of the mobile number written on the slip were obtained and verified, whereafter the Appellant was arrested on 3rd February, 2016. On the same day, the victim was produced before the Metropolitan Magistrate and her 164 CrPC statement was recorded. Based on investigation, Sections 328/376/354-B/368 IPC and Sections 4/6 of the POCSO Act were added.

2.4. On 19th December, 2017, charges were framed against the Appellant under Sections 366/368/34/376(2) IPC and Section 6 of the POCSO. The Appellant pleaded not guilty and claimed trial.

2.5. The Appellant admitted various documents under Section 294 CrPC, as tabulated below: Ex. No. PX PX-1 Document / Description Date Author / Issuer

FIR No. 93/2016 (registration record) DD No. 41-A (reg. 27th January, 2016) — HC Kanwar Singh 27th January, 2016 — PX-2 MLC of accused No. 23369/2016 3rd February, 2016 Dr. Wasim Saifi PX-3 Potency test report of accused 3rd February, 2016 Dr. Jitender Pratap Singh PX-4 PX-5 Proceedings of recording victim’s Section 164 CrPC statement CDR of mobile No. 80145-71493 (27th–30th January, 2016) PX-6 CAF for mobile No. 80145-71493 — Certificate under Section 65B, Evidence Act PX-7 — 3rd February, 2016 Metropolitan Magistrate 27th –30th January, 2016 Service provider Service provider Authorised officer PX-8 Seizure memo: Maruti Alto HR- — Investigating Officer Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 3 of 27 Ex. No. Document / Description Date Author / Issuer 26-AY-0938 Reading certificate (Children Academy, Manipur) Attested admission/withdrawal register (DOB: 13th July, 2002) — — PX-9 PX-10 Headmaster, Academy Children (attesting authority) Children Academy

2.6. In view of these admissions, the Court, on 27th April, 2018, dropped corresponding formal witnesses.

2.7. The prosecution then examined 15 witnesses: PW. No. Name / Description Role / Deposition PW1 The Prosecutrix PW2 Complainant/Cousin of victim PW3 Ct. Roshan PW4 Dr. Nishi Choudhary, Safdarjung Hospital PW5 Ct. Satender Kumar PW6 Ct. Prem PW7 D.S. Paliwal, Sr. Scientific Officer (Biology), FSL Rohini PW8 ASI Raj Kumar Victim; alleged sexual assault; statement under Section 164 CrPC; identified accused. Reported victim missing; present when victim found; present at hospital; confirmed slip containing accused’s details to IO. Took victim hospital; confirmed medical examination of victim and seizure of slip Proved MLC and MLE report of sexual violence; saw Dr. Swati Gupta prepare MLC and confirmed her signature and writing. Took accused for medical exam and potency test; confirmed receiving accused’s MLC. Participated in investigation and arrest of accused; confirmed his disclosure statement. Concluded DNA profile generated from victim’s white top (exhibit 3b) was similar to DNA profile of accused; proved report and genotype data of exhibits. Got FIR registered; messaged regarding the victim missing on ZIPN; present when victim recovered; seized paper slip; present in arrest of accused. PW9 Rajiv Sharma, Owner of Alto Exchanged his Alto with Ford on 26th Apri, Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 4 of 27 PW. No. Name / Description Role / Deposition bearing No. HR-26-AY-0938 PW10 SI Asha, Investigating Officer PW11 Sarita, Senior Scientific Assistant, FSL Rohini PW12 Yashpal, landlord of accused 2015 at Astro Ford showroom, and handed over relevant documents. Examined victim; recorded victim’s 161 CrPC statement with assistance of translator; seized sexual-assault exhibits; present at site plan; arrest of accused; proved confirmed recovery of red Alto car, sending of exhibits to FSL, and filing of chargesheet. Proved copy of original questioned writings (Ex. No. 662/DOC/RFSL (Ex. PW-11/C). PW-11/B) report Deposed that he was caretaker since 2009, and that the accused began living on rent around February 2016; within a week or 10 days police inquired about him; accused’s police verification was still pending. PW13 ASI Mukesh Kumar, MHC(M) Proved deposit, handling of case property. PW14 Dr. J Haokip, Medical Officer, Kangpoki, Govt. of Manipur PW15 Dr. Leimapokpam Bobby, Medical Officer, Gynaecologist, Chandel District, Govt. of Manipur Verified birth certificate of victim through SDM office; sent verification report (Ex. PW-14/A) to IO via WhatsApp. Issued Birth Certificate (Ex. PW-15/B) for the Prosecutrix based on SDM verification order (Ex. PW-15/A); confirms date of birth as 13th July, 2002.

2.8. After closure of prosecution evidence, incriminating circumstances were put to the Appellant under Section 313 CrPC. He denied the allegations and opted to lead defence evidence, and examined himself as DW-1.

2.9. Upon appraisal of the evidence, the Trial Court held that the prosecution proved the ingredients of Sections 366 and 376(2)(i) IPC and Section 4 POCSO, and convicted and sentenced the Appellant as follows: Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 5 of 27 Sr. No. Offence convicted Period of sentence Fine imposed Default sentence

3. Section 376(2)(i) IPC 14 years’ rigorous imprisonment Section 366 IPC 10 years’ rigorous imprisonment INR 50,000 INR 10,000 5 months’ simple imprisonment 1 month’s simple imprisonment Section 4 POCSO Act No separate sentence in view of Section 71 IPC read with Section 42 POCSO — —

2.10. Both the sentences were directed to run concurrently. As regards compensation, the Complainant (victim’s cousin) apprised the Court that the victim is married and residing with her in-laws, who are unaware of the pendency of the case. Contacting her for preparation of the VIR or for compensation may adversely affect her marital life. Thus, keeping the welfare of the victim in view, the Trial Court did not pass any order on compensation. CONTENTIONS OF THE APPELLANT

3. The submissions advanced by Ms. Neha Kapoor, counsel for the Appellant, are summarised as follows:

3.1. The case is a result of prior animosity and motivated implication. The victim was working as an unpaid domestic help in the house of the Complainant, was unhappy staying in Delhi, and wanted to return to Manipur. The Appellant had earlier assisted her by providing his mobile number and email address for contacting her family. This act of assistance has been misused against him. The Complainant and his wife bore grudge against the Appellant, particularly due to his strained relations with the Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 6 of 27 Complainant and his cousin John, with whom he had an altercation earlier. The fact that John was not examined as a witness indicates suppression of material facts that could reveal the underlying conspiracy.

3.2. The Complainant’s wife acted as an interpreter during the medical examination of the prosecutrix. This raises serious concerns regarding the accuracy and neutrality of the victim’s first version, particularly because the victim is not conversant with Hindi or English, as per the prosecution’s own case.

3.3. The victim’s statements are riddled with contradictions, material improvements, and inherent improbabilities. No allegation of rape, digital penetration, or physical assault was recorded in the MLC or at the first instance before the police. These allegations surface for the first time in her 161 CrPC statement, diminishing their weight.

3.4. The narrative of kidnapping is highly improbable. The prosecutrix claims she was pulled into an Alto with conventional doors, which makes a sudden abduction improbable, even more so when the Appellant was allegedly seated beside her at the time. The location was a busy market frequented by members of the North-East community, yet the prosecutrix claims not to have seen anyone from her community.

3.5. The victim shifts ground across her 161 CrPC statement, 164 CrPC deposition, the MLC, and her testimony in court. In her 164 CrPC statement, she said the Appellant dropped her home; in court she claimed she met PW- 2 and the police on the way back. In 161 CrPC, she asserted she remembered her address, which contrasts with earlier claims of helplessness. The 164 CrPC statement was recorded on 2nd February, 2016, which afforded the family time to influence her. On this footing, the victim cannot Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 7 of 27 be treated as a ‘sterling witness’, and her testimony, absent independent corroboration, ought not to find a conviction.

3.6 The manner and timing of her return are also at odds. The MLC records that she was dropped at home around 1:30 PM by a car driver, whereas PW-8 places her walking near a traffic signal in the evening. Section 164 speaks of the Appellant dropping her home; the in-court version differs again. These are not minor lapses in memory but go to the core sequence of events.

3.7. There are material contradictions between PW-1 and PW-2. PW-2 claims the prosecutrix was his cousin, whereas the prosecutrix (PW-1) refers to PW-2 and his wife as “uncle” and “aunty”. PW-2 states that she went to buy bananas, while PW-1 says she was looking at earphones. PW-2 claims she knows English, Kuki, and some Hindi; however, the prosecution story relies on her inability to understand Hindi or English, necessitating translation through the Complainant’s wife.

3.8. The medical evidence does not support the prosecution case. There were no external or internal injuries, no scratches, no swelling, and no signs of intercourse or digital penetration. There was no hymen tear or bleeding/injury. The FSL report (Ex. PW-7/A) also found no traces of intoxicants, sedatives, or any tranquilizing substance in her blood, contrary to the allegation that she was drugged. Moreover, the doctor who prepared the MLC, Dr. Swati Gupta, was not examined. The age of the victim was never proved through admissible and reliable evidence.

3.9. The electronic trail is tenuous. The CDR/location chart (Ex. PX-5) and mobile phone evidence relied on by the prosecution is unreliable and unconnected to the Appellant. The CAF form (Ex. PX-6) does not link the Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 8 of 27 relevant phone number to the Appellant. The personal search memo (Ex. PW-6/A) shows the Appellant was found only with a Nokia handset without any SIM. No witness proved that the mobile number allegedly used in the incident belonged to the Appellant. The paper slip allegedly recovered was also surrounded by contradictions, its seizure memo (Ex. PW-1/B) contradicts PW-2’s version, no purse containing the slip was ever seized, and PW-2 admitted to having the slip since 28th January, 2016, despite the Appellant being arrested only on 03rd February, 2016.

3.10. The investigation is marred by serious lapses. The prosecution failed to prove ownership or possession of the Alto car by the Appellant. PW-9, the car owner, did not state that he handed the vehicle to the Appellant. No fingerprints or incriminating material were recovered from the vehicle, and the prosecutrix was never shown the car for identification. Additionally, the prosecution failed to prove the Appellant’s residence at the alleged address in Kishangarh. Although CCTV cameras existed the area, Investigating Officer (PW10) admitted that no CCTV footage was collected at any stage. However, PW-8 ASI Raj Kumar contradicted this by stating that the police had checked CCTV cameras in the area, implying that footage was available and should have been secured. This contradiction shows that either the IO failed to investigate properly, or PW8 was misinformed, but in either case, the failure to seize CCTV footage, despite availability, amounts to an investigative lapse. No public or independent witness from the market or neighbourhood was examined despite the area being crowded.

3.11. There was an unexplained delay in sending crucial exhibits to the FSL. The victim’s clothes and the Appellant’s blood sample remained in Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 9 of 27 police custody for several days, as evidenced by the Store-Room Register entries (Ex. PW-13/A and Ex. PW-13/B) and Road Certificate (Ex. PW- 13/D), before being sent for examination, increasing the possibility of tampering. Reliance is placed on the judgment of the Supreme Court in Rahul v. State of Delhi Ministry of Home Affairs & Anr, (2023) 1 SCC 83, wherein the Court held that mere exhibiting of an FSL/DNA report does not prove its contents, particularly where samples remain in the Malkhana for prolonged periods, raising the likelihood of tampering. The present case suffers from identical infirmities: the samples were seized and kept in police custody for several days, the chain of custody is unexplained, and neither the Trial Court nor the prosecution examined the scientific basis of the FSL findings or whether proper procedures were followed.

3.12. Without prejudice, the Appellant submits that even if this Court upholds the conviction, the sentence may be reduced to the statutory minimum. He was approximately 27 years old at the time of the incident, has no criminal antecedents, currently suffers from depression and diabetes, and is the sole caretaker of his 67-year-old ailing mother. CONTENTIONS OF THE STATE AND COUNSEL FOR VICTIM

4. The submissions advanced by Mr. Hitesh Vali, APP for the State, and Ms. Liyi Manli Noshi, counsel for the victim, are as follows:

4.1. The age of the victim stands proved from school records (Ex. PX-9) and admission register (Ex. PX-10), which indicate the victim’s date of birth as 13th July, 2002. These documents were admitted by the Appellant under Section 294 CrPC. Identity of the accused is established as the victim consistently named him from the earliest statements, the Section 164 CrPC Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 10 of 27 statement, and the recovery/seizure memos already exhibited. Once age, identity, and the sexual acts are prima facie shown, the presumptions under Sections 29 and 30 of the POCSO Act operate. The Appellant has not rebutted them even on a preponderance of probabilities.

4.2. The victim’s account is clear and steady across her statements under Section 161, Section 164, and her court testimony. Minor variations are natural and do not affect the core narrative of kidnapping, confinement, and repeated sexual assault. The testimony of the prosecutrix, by itself, can sustain conviction in law.

4.3. The cousin of the victim, Complainant (PW-2), provides immediate post-incident disclosure evidence. The seizure of the paper slip bearing the Appellant’s details, CDRs, and the recovery of the vehicle circumstantial support. The Appellant’s own potency/MLC examination do not aid his defence.

4.4. MLC and FSL results are not exculpatory. Absence of injuries or intoxicants does not negate allegations of penetrative sexual assault. The nature of the acts alleged does not invariably leave injuries, and a lack of forensic recovery is legally not decisive.

4.5. Alleged lapses, non-collection of some CCTV, non-examination of certain public witnesses, or timing differences, are, at best, irregularities that do not go to the root when the substantive ocular evidence is trustworthy. The chain of custody is adequately proved through road certificates and Malkhana records.

4.6. The translation of the victim’s statement, at the time of her medical examination, by a relative of the Complainant does not, per se, undermine credibility, particularly where later the victim’s own statement under Section Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 11 of 27 164 CrPC and her sworn testimony are consistent. The Appellant’s plea of tutoring is purely speculative.

4.7. The conduct of supplying a paper slip with the Appellant’s name, number and email is not inconsistent with guilt. Offenders may attempt post- event contact or control. The narrative urged by the Appellant is contrived and does not displace the proven core facts.

4.8. The Appellant’s alternate plea of reduction in the period of sentence is opposed. The aggravating factors, the victim being a minor, repeated sexual assault, wrongful confinement, and breach of trust by the Appellant, justify the sentence imposed. ANALYSIS

5. This appeal arises from a conviction in a case where the law and the facts ask the Court to tread with care. The allegations concern a child. The record contains evidence that, if accepted, speaks of a serious violation of bodily autonomy. However, the gravity of the accusation cannot become a substitute for proof. A first appeal against conviction carries a duty to re- examine the evidence in full, and to decide for itself whether the charge has been established beyond reasonable doubt. The Court will, therefore, test each plank of the Appellant’s challenge against the record as it stands, within the POCSO framework, including the presumptions that arise once the prosecution proves the foundational facts, and the manner in which those presumptions may be rebutted by the defence. Age of the victim and statutory presumptions under POCSO Act

6. The age of the victim is not in real contest. The school records (Ex. PX-9) and the admission-withdrawal register (Ex. PX-10), which record her Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 12 of 27 date of birth as 13th July, 2002, were admitted by the Appellant under Section 294 CrPC. These are contemporaneous entries made in the ordinary course, long before the criminal process began, and no contrary material has been produced to displace them. The birth certificate (Ex. PW-15/B) issued by the competent authority is in the same vein and reinforces the school record. On this material, the victim was a “child” within the meaning of Section 2(1)(d) POCSO at the relevant time.

7. Once minority is established, the next inquiry concerns the operation of the statutory presumptions contained in Sections 29 and 30 of POCSO. These provisions do not relieve the prosecution of its initial burden. The prosecution must first prove the foundational facts, which include the age of the child, the identity of the accused, and the occurrence of the act constituting the offence, to the standard of proof required in a criminal trial. On such foundational facts being proved, Section 29 raises a presumption that the accused committed the offence, and Section 30 adds a presumption as to culpable mental state. Both presumptions are rebuttable, and the accused may rebut them on a preponderance of probabilities. The defence case, therefore, must be assessed not at the level of mere denial or conjecture, but on whether it rebuts the prosecution version with a plausible alternative consistent with the record. The victim’s testimony

8. The Appellant has urged that PW-1 (the victim) is untrustworthy, that her narrative has improved over time, and that, in the absence of independent corroboration, her evidence cannot sustain conviction. The governing principles are settled. A conviction for sexual offences can rest on the sole testimony of the prosecutrix/victim if it inspires confidence and Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:18.12.2025 19:39:30 CRL.A. 761/2025 Page 13 of 27 withstands scrutiny. Corroboration is not a rule of law. It is, at most, a rule of prudence invoked where the testimony falls in the grey zone. Rai Sandeep v. State (NCT of Delhi)5 explains the idea of a “sterling witness”. In State of H.P. v. Sanjay Kumar @ Sunny6, the Supreme Court reiterated that courts ought not to insist on routine corroboration in every case. The approach is neither to start with suspicion nor to accept it as credulous. The the evidence for intrinsic consistency, coherence with surrounding circumstances, and resilience in cross-examination.

9. PW-1’s evidence does not fracture on any material aspect. The core of her account remains steady across her statements and deposition before the Court. She speaks of being taken away in a vehicle, being wrongfully confined at an unknown place, being subjected to sexual assault, being dropped back near the place where she was ultimately noticed, and being handed a handwritten slip containing a name, mobile number and email address, which the police seized (Ex. PW-1/B). Her statement under Section 164 CrPC (Ex. PX-4) captures the substance of this version, including the post-occurrence conduct of the perpetrator in leaving behind contact particulars. In court testimony, she reiterated her version and narrated the incident that she alleges occurred. The variations highlighted by the defence are, on a plain reading, at the periphery. They concern descriptive details and sequence, not the occurrence itself or the identity of the person she attributes it to.

10. The defence has also attempted to build a case of contradiction by comparing the history recorded in the MLC, the 161 CrPC statement, the