$~11 & 12

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 02.02.2023
Judgment pronounced on: 16.05.2023

+ CRL.A. 570/2020 & CRL.M.A. 3034/2022

RAJU YADAV ..... Appellant
Through: Mr. Anwesh Madhukar, Adv. (DHCLSC)
with Ms. Prachi Nirwan, Mr. Yaseen Siddiqui, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Manjeet Arya, APP
SI Mohit Singh, PS Punjabi Bagh
12
+ CRL.A. 206/2022
LAKHI VISHWAS ..... Appellant
Through: Mr. Akhil Dhaka, Adv. for Mr. Rajesh
Mishra, Adv. (DHCLSC)
versus
STATE (GOVT. OF NCT DELHI) ..... Respondent
Through: Ms. Manjeet Arya, APP
SI Mohit Singh, PS Punjabi Bagh
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH

JUDGEMENT

: JASMEET SINGH (J)

1. These are appeals seeking setting aside of the judgement dated 31.01.2020
and order on sentence dated 27.06.2020 passed by the learned Special
Judge (POCSO ACT)/ ASJ-01, (West), Tis Hazari Courts, Delhi, in case
S.C. No. 55924/2016, FIR No. 224/2013, u/s 376/342/506/120B/109 IPC
and section 4/6 of Protection of Children from Sexual Offences Act, 2012

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 (hereinafter referred to as “POCSO Act”), registered at P.S. Punjabi Bagh,
Delhi.
2. The appellants in CRL.A. 570/2020 and CRL.A. 206/2022 are Mr. Raju
Yadav (hereinafter referred to as “appellant No.1”) and Ms. Lakhi
Vishwas (hereinafter referred to as “appellant No.2”) respectively.
3. Vide judgement dated 31.01.2020, the appellant No.1 was found guilty of
aggravated penetrative sexual assault u/s 6 of POCSO Act and appellant
No.2 for abetting and aiding the offence of aggravated penetrative sexual
assault by appellant No.1 u/s 16 of POCSO Act. Vide order on sentence
dated 27.06.2020, the appellant No.1 and appellant No.2 were sentenced
to undergo rigorous imprisonment for 10 years along with fine of
Rs.10,000/- and in default of payment of fine, a further period of 1 month
simple imprisonment each.
4. Brief facts of the case are-
i. Appellant No.2 is the maternal aunt of the prosecutrix. It is alleged that on
25.05.2013,the appellant No.2 took the prosecutrix (aged about 13 years)
to her place of employment and during that night, when the prosecutrix
was sleeping with appellant No.2 in the room, appellant No.1 (house
guard) entered the room and committed rape upon the prosecutrix while
the appellant No.2 bolted the room from inside. Both the appellants
threatened the prosecutrix of dire consequences if she raised any alarm. It
is further alleged that appellant No.1 repeated the same act upon the
prosecutrix the next day, i.e. on 26.05.2013 and appellant No.2 again
bolted the room from inside while appellant No.1 committed rape upon
the prosecutrix.
ii. On 27.05.2013, at around 6 am, both the appellants dropped the
prosecutrix at her place of employment at New Rajender Nagar. The
prosecutrix narrated the entire incident to her employer Ms. Pushpa Rani
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 (also referred to as Pusha Nani by the prosecutrix) and thereafter,
chargesheet was filed for offences u/s 376/342/506/120B/109 IPC and u/s
10/4/6 of POCSO Act against the appellants.
iii. Vide order dated 07.10.2013, charges for offence u/s 6 of POCSO Act was
framed against appellant No.1 and charges for offence u/s 16 of POCSO
Act was framed against appellant No.2.
5. The prosecution has examined sixteen witnesses in this regard, being the
prosecutrix, public witnesses, expert witnesses and police officials.
6. Mr. Madhukar, learned counsel for appellant No.1 submits that the
provisions of POCSO Act cannot be attracted in the present case as the
age of the prosecutrix was not established to be under 18. He submits that:
i. Section 61 of the Evidence Act states that the contents of a document may
be proved either by primary or secondary evidence but in the present case,
the age of the prosecutrix is not proved through primary or secondary
evidence.
ii. A bone ossification test was relied upon to prove the age of the
prosecutrix. He relies upon various judgements of this Court and Supreme
Court to state that a plus/minus difference of 2 years is prevalent in any
bone ossification test, thus making the age of prosecutrix above the age of
majority. He states that the age provided in the medical examination
report has been ascertained to be between 15-17 years of age and keeping
in view the range of the test, the age of the prosecutrix could have been
anywhere in the range of 13-19 years at the time of incident. He states that
the bone ossification test which the prosecution has relied upon is merely
a photocopy of the said test which was conducted in another FIR and not
the present FIR. He further states that the doctor of the said test has not
been examined in the present case and hence the bone ossification test has

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 no evidentiary value or validity in this case as it does not fall within the
ambit of section 65 of Evidence Act.
7. He states that no conviction can lie u/s 6 POCSO Act for the aforesaid
reasons. He further states that in the alternative, the appellant No.1 can
also not be convicted u/s 376D IPC as no charges have been framed under
the said section and there is also no evidence to suggest the offence of
376D IPC.
8. He further states that the tear of the hymen cannot be a conclusive proof
of penetrative sexual assault. He states that as per the MLC of the
prosecutrix (EX. PW. 5/A), the tear of the hymen is an old tear (though
subsequently crossed out) and there was also no edema, congestion or
physical injuries on the genitalia of the prosecutrix or any other part of her
body.
9. He submits that the semen found on the alleged underwear of the
prosecutrix does not suggest the offence of rape.
i. The semen of the appellant No.1 was not found on any of the swabs
collected and was only found on the underwear of the prosecutrix, thereby
meaning that no semen was found on her body.
ii. The underwear which allegedly had the semen of appellant No.1 as per
the FSL report was not recovered by the investigating agency but in fact
was brought by the prosecutrix herself as stated in the MLC report. Upon
collecting the said underwear, no observation or comment was made by
the examining doctor as to the details of the underwear in terms of
colours, white spots, etc.
iii. The allegation that the semen which was found on the underwear was that
of appellant No.1 has not been put to him in his statement under section
313 and thus, the same cannot be used against him.

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 10. He has placed reliance upon “Sharad Birdhichand Sarda v. State of
Maharashtra” [(1984) 4 SCC 116] wherein the Supreme Court
observed that:-

“143.. This has been consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat Singh v. State of
Madhya Pradesh [1951 SCC 1060 : AIR 1953 SC 468 : 1953 Cri LJ
1933] this Court held that any circumstance in respect of which an
accused was not examined under Section 342 of the Criminal
Procedure Code cannot be used against him. Ever since this
decision, there is a catena of authorities of this Court uniformly
taking the view that unless the circumstance appearing against an
accused is put to him in his examination under Section 342 of the
old Code (corresponding to Section 313 of the Criminal Procedure
Code, 1973), the same cannot be used against him.
145. It is not necessary for us to multiply authorities on this point as
this question now stands concluded by several decisions of this
Court. In this view of the matter, the circumstances which were not
put to the appellant in his examination under Section 313 of the
Criminal Procedure Code, 1973 have to be completely excluded
from consideration.”

11. He further relies upon a judgement of this Court titled as “Mohd. Azizul v.
State” [2022 SCC OnLine Del 2425] and more particularly para 15 which
states that:-

“15. He further relies on the following judgments:

7.1 Firstly, on the judgment of Altaf Ahmed v. Rahul @
State [CRL. A. 474/2020, Delhi High Court, dated 03.12.2020] to
state that before the presumption under Section 29 of the POCSO
Act can come into, the prosecution has to establish the foundational
facts by leading evidence. The relevant para is as under:
“24. So far as the contention by learned APP for the State with
respect to presumption under Section 29 of the POCSO Act is
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 concerned, it is no doubt true that in a trial under POCSO Act, the
accused is liable to rebut the aforesaid presumptions against him.
However, at the same time, for the said presumptions to come into
play, the prosecution first has to establish the foundational facts by
leading evidence. The presumption is rebuttable by either
discrediting the witnesses through cross-examination or by leading
defence evidence.”
7.2 Secondly, on the judgment of Abhay Singh v. State [CRL. A.
968/2015, Delhi High Court dated 26.07.2017] wherein it was
observed:
“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.PW-8/A does not
show that the private part of the victim had any mark of violence.
Had there been penetration by a fully grown-up person like her
father, even the slight penetration would have caused some injury
in its attempt to enter the child's vagina.””

12. He further submits that a lawyer cannot give away the right of an accused.
He states that during the examination-in-chief of the prosecutrix, the
underwear of the prosecutrix was not produced before the court and
hence, she could not identify the same. However, the defence counsel
submitted that the identity of the underwear and consequentially the
presence of semen on the underwear was not disputed thereby foreclosing
the right of the accused to contest the identity of the underwear. He has
relied upon “Pawan Kumar v. State” [2019 SCC OnLine Del 10452]
wherein it was observed:-

“24. The question whether a suggestion given by the counsel on

behalf of the accused can be considered as an admission and bind
the accused under Section 18 of Indian Evidence Act came before

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 the Supreme Court in Koli Trikam Jivraj (supra), where it was held
as under:—
“18. Therefore, the accused is entitled to the benefit of the plea set
up by the lawyer but it cannot be said that the plea or defence
which his lawyer puts forward must bind the accused. The reason is
that in a criminal case a lawyer appears to defend the accused and
has no implied authority to make admissions against his client
during the progress of the litigation either for the purpose of
dispensing with proof at the trial or incidentally as to any facts of
the case. See Phipson's Manual of Evidence, Eighth Edition Page
134. It is, therefore, evident that the role that a defence lawyer
plays in a criminal trial is that of assisting the accused in defending
his case. The lawyer has no implied authority to admit the guilt or
facts incriminating the accused. The argument of Mr. Nanavati that
suggestion put by the lawyer of the accused in the cross-
examinations of the prosecution witnesses amounts to an admission
under Section 18 of the Indian Evidence Act cannot be accepted.””

13. He has also relied upon “Himalayan Coop. Group Housing Society v.
Balwan Singh”[(2015) 7 SCC 373] and more particularly paras 22, 26
and 32 which read as under:-

“22. Apart from the above, in our view lawyers are perceived to be
their client's agents. The law of agency may not strictly apply to the
client-lawyer's relationship as lawyers or agents, lawyers have
certain authority and certain duties. Because lawyers are also
fiduciaries, their duties will sometimes be more demanding than
those imposed on other agents. The authority-agency status affords
the lawyers to act for the client on the subject-matter of the
retainer. One of the most basic principles of the lawyer-client
relationship is that lawyers owe fiduciary duties to their clients. As
part of those duties, lawyers assume all the traditional duties that
agents owe to their principals and, thus, have to respect the client's
autonomy to make decisions at a minimum, as to the objectives of
the representation. Thus, according to generally accepted notions
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 of professional responsibility, lawyers should follow the client's
instructions rather than substitute their judgment for that of the
client. The law is now well settled that a lawyer must be specifically
authorised to settle and compromise a claim, that merely on the
basis of his employment he has no implied or ostensible authority to
bind his client to a compromise/settlement. To put it alternatively
that a lawyer by virtue of retention, has the authority to choose the
means for achieving the client's legal goal, while the client has the
right to decide on what the goal will be. If the decision in question
falls within those that clearly belong to the client, the lawyer's
conduct in failing to consult the client or in making the decision for
the client, is more likely to constitute ineffective assistance of
counsel.
26. While Rule 15 mandates that the advocate must uphold the
interest of his clients by fair and honourable means without regard
to any unpleasant consequences to himself or any other. Rule 19
prescribes that an advocate shall only act on the instructions of his
client or his authorised agent. Further, the BCI Rules in Chapter I
of the said Section II provide that the Senior Advocates in the
matter of their practice of the profession of law mentioned in
Section 30 of the 1961 Act would be subject to certain restrictions.
One of such restrictions contained in clause (cc) reads as under:
“(cc) A Senior Advocate shall, however, be free to make
concessions or give undertaking in the course of arguments on
behalf of his clients on instructions from the junior advocate.”
32. Generally, admissions of fact made by a counsel are binding
upon their principals as long as they are unequivocal; where,
however, doubt exists as to a purported admission, the court should
be wary to accept such admissions until and unless the counsel or
the advocate is authorised by his principal to make such
admissions. Furthermore, a client is not bound by a statement or
admission which he or his lawyer was not authorised to make. A
lawyer generally has no implied or apparent authority to make an
admission or statement which would directly surrender or conclude
the substantial legal rights of the client unless such an admission or
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 statement is clearly a proper step in accomplishing the purpose for
which the lawyer was employed. We hasten to add neither the client
nor the court is bound by the lawyer's statements or admissions as
to matters of law or legal conclusions. Thus, according to generally
accepted notions of professional responsibility, lawyers should
follow the client's instructions rather than substitute their judgment
for that of the client. We may add that in some cases, lawyers can
make decisions without consulting the client. While in others, the
decision is reserved for the client. It is often said that the lawyer
can make decisions as to tactics without consulting the client, while
the client has a right to make decisions that can affect his rights.”

14. In addition, it is submitted by learned counsel for appellant No.1 that there
are inconsistencies, improvements and contradictions in the statements of
the prosecutrix. He submits that as per the statement of the prosecutrix in
the FIR, she has said that she had tried to raise an alarm but could not do
so since the appellant No.2 threatened her. Subsequently, in her 164
statement she has stated that she was unable to raise an alarm as the
appellant No.1 had tied a piece of cloth around her mouth so that she does
not make any noise. He further submits that these two statements were
further contradicted during her examination-in-chief. In her statement
made during the trial, the prosecutrix has stated that it was appellant No.2
who had threatened the prosecutrix not to make any noise, while in her
statement made on 26.05.2013, she has stated that both the appellants
threatened her. It is stated that as per testimony of PW-2 (Mr. Satpal
Chawla), it is stated that the prosecutrix was seen in the evening of
Sunday and she appeared to be normal.
15. It is further submitted that the FSL report (EX PW 16/B) is inconclusive
since the report states that the DNA found on the underwear of the
prosecutrix is similar but not exact to that of the blood sample of the
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 appellant No.1. He submits that since DNA is 99% similar in all human
beings, the mere fact that the report states that the DNA found is similar to
that of the appellant cannot be the basis of conviction u/s 376 IPC or 6 of
POCSO Act. Reliance is placed upon a judgement of Supreme Court
“Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik” [(2014) 2 SCC
576], and more particularly para 13 which reads as:-
“13…DNA consists of four nitrogenous bases — adenine, thymine,
cytosine, guanine and phosphoric acid arranged in a regular
structure. When two unrelated people possessing the same DNA
pattern have been compared, the chances of complete similarity are
1 in 30 billion to 300 billion. Given that the Earth's population is
about 5 billion, this test shall have accurate result. It has been
recognised by this Court in Kamti Devi that the result of a genuine
DNA test is scientifically accurate. It is nobody's case that the result
of the DNA test is not genuine and, therefore, we have to proceed on
an assumption that the result of the DNA test is accurate. The DNA
test reports show that the appellant is not the biological father of
the girl child.”

16. It is stated that the judgement above clearly shows that the DNA test will
be genuine and scientifically accurate since the chances of complete
similarity are 1 in 30-300 billion, and thus leaves no room for error. The
fact that the DNA test shows that the DNA is similar but not the same as
that of the appellant No.1, points towards the innocence of the appellant
No.1.
17. Mr. Madhukar states that there is also a delay of 2 days in registration of
the FIR and the present FIR is only a retaliation to the objection of the
appellants towards the prosecutrix‟s affair with a boy named Raju who
was working at the prosecutrix‟s employers house.
18. Learned counsel for the appellant No.2 submits that the version of the
prosecutrix is unreliable as there are material improvements in her 164
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 statement as well as in her statement recorded on oath before the learned
Trial Court at the time of evidence.
19. He states that the learned Trial Court has failed to establish any “motive”
as defined under section 8 of Evidence Act since it is the most crucial
ingredient of any criminal act. He further states that the prosecution has
not been able to establish as to why the appellant No.2, being the maternal
aunt of the prosecutrix, would support someone in commission of rape
upon her.
20. It is submitted by learned counsel for appellant No.2 that the boy named
Raju, who was aged about 16-17 years at the time of the alleged incident,
was not made a witness by the police even when the FIR was registered
from the same address. It is further submitted that nothing material can be
gathered through the testimony of PW-2 (Mr. Satpal Chawla) and PW-3
(Ms. Pushpa Rani) which would prove that the alleged incident took place
with the prosecutrix.
21. He further states that there are several judgements of this Court as well as
the Supreme Court stating that if there are two views, one pointing
towards the guilt of the accused and another towards his innocence, then
the view which is favourable to the accused must be adopted.
22. Ms. Arya, learned APP submits that the prosecutrix as well as the
prosecution witnesses have duly supported the case of the prosecution and
all the prosecution witnesses have also identified the appellants. She states
that the finding of DNA being similar is enough to return a finding of
conviction.
23. It is submitted by the learned APP that in the present case, the lawyer did
not give up the right of the accused, but the accused himself gave up his
right. She further submits that even the medical and FSL reports also

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 support the prosecution‟s case and therefore, the prosecution has proved
its case beyond a reasonable doubt.

ANALYSIS

24. I have heard learned counsel for the parties.

25. Under section 29 of the POCSO Act, there is a presumption of guilt
against the accused. The prosecution is only required to lay the
foundational facts which disclose the commission of offence by the
accused persons. Once the same has been done, it is the accused who has
to rebut the presumption of guilt.
26. Bone ossification test
i. In the present case, there was no birth certificate/school certificate of the
prosecutrix and the prosecution relied upon a bone ossification test of the
prosecutrix dated 14.06.2013 done in another case, i.e., FIR No. 100/13
registered u/s 370 IPC and 3/4 of Child Labour Act registered at PS
Rajinder Nagar, to prove the age of the prosecutrix.
ii. The appellants have objected to the reliance placed upon the said bone
ossification test, as the same was conducted in another FIR and not for the
purpose of determining the age of the prosecutrix in the present case. I am
unable to agree with the objection raised by the appellants as the
testimony of PW-13 (Inspector Saminder Singh), proves that the bone
ossification test has not been disputed by the appellant, their counsels and
the amicus curiae. The testimony of PW-13 reads as under: -

“PW 13- 142816, Anti Corruption Branch, CBI, Delhi.

ON S.A.
1. On 28.05.2013 I was posted as S1 at PS Rajinder Nagar. On that
day further investigation of this case i.e. FIR no. 100/13 u/s 370 IPC
and 3/14 Child Labour Act was assigned to me. In that case, I got
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 conducted the ossification test of the prosecutrix (who is also a
victim in this case) from DDU hospital on 14.06.2013. I collected
the ossification test report of the prosecutrix in which her age was
opined as 15-17 years.
2. IO of the present case requested me to hand over the copy of
ossification test of the prosecutrix. I gave the copy of ossification test
of the prosecutrix to IO /SI Vipnesh. (The ossification report of the
prosecutrix is not disputed by the accused as well as their Legal
Aid Counsel and Amicus Curiae).Copy of the ossification test
report of the prosecutrix is exhibited as Ex.PW13/A.”
[

iii. Once there was no objection to the bone ossification test done in FIR No.
100/13 being proved and there was no dispute to its veracity by the
appellants as well as their legal aid counsel/ amicus curiae, the contents of
the bone ossification test have been deemed to be accepted by the
appellants.
iv. In addition, I am also of the view that once there is a bone ossification test
already on the Court record (even though in another case) which is not
disputed by the appellants as well as the amicus, the prosecutrix cannot be
required to undergo another bone ossification test. The same if permitted,
would amount to re-victimization and undergoing the trauma once again
by the child survivor/prosecutrix.
27. Age of the prosecutrix
i. The second objection raised by the appellants is with regard to age of the
prosecutrix. Various judicial pronouncements grant a leeway of 2 years on
either side, while interpreting a bone ossification test for determination of
age. As per the counsel of the appellants, since the bone ossification test
conducted on the prosecutrix opines her age between 15-17 years, then
after taking into consideration the margin of error of 2 years, the age of
the prosecutrix should be considered 19 years on the date of the offence
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 and hence, the appellants should not have been convicted under the
POCSO Act.
ii. The objective of POCSO Act reads as under: -
“The Protection of Children from Sexual Offences (POCSO) Act, 2012
was formulated to effectively address the heinous crimes of sexual
abuse and sexual exploitation of children. This Act of 2012 was
introduced to provide for the protection of children from the offences
of sexual assault, sexual harassment etc. This act also provides for
safeguarding the interests of the child at every stage of the judicial
process by incorporating child friendly mechanisms for reporting,
recording of evidence, investigation and speedy trial of offences
through designated Special Courts.
Primarily the object of the Act were to protect the children from
various types of sexual offences and for this purpose this Act provides
for the establishment of Special Courts for trial of offences under the
Act, keeping the best interest of the child as of paramount importance
at every stage of the judicial process.”
iii. The Supreme Court in “Jarnail Singh v. State of Haryana”[(2013) 7
SCC 263] observed that:-
“22. On the issue of determination of age of a minor, one only needs to
make a reference to Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to as “the
2007 Rules”). The aforestated 2007 Rules have been framed under
Section 68(1) of the Juvenile Justice (Care and Protection of Children)
Act, 2000. Rule 12 referred to hereinabove reads as under:
“12.Procedure to be followed in determination of age.—(1) In
every case concerning a child or a juvenile in conflict with law, the
court or the Board or as the case may be, the Committee referred to
in Rule 19 of these Rules shall determine the age of such juvenile or
child or a juvenile in conflict with law within a period of thirty days
from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child or
as the case may be the juvenile in conflict with law, prima facie on

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 the basis of physical appearance or documents, if available, and
send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law,
the age determination inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee by seeking evidence by
obtaining—
(a)(i) the matriculation or equivalent certificates, if available; and
in the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the court or the
Board or, as the case may be, the Committee, for the reasons to be
recorded by them, may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on lower side within the
margin of one year,
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age
and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in conflict with
law.
(4) If the age of a juvenile or child or the juvenile in conflict with
law is found to be below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and these Rules
and a copy of the order shall be given to such juvenile or the person
concerned.
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 (5) Save and except where, further inquiry or otherwise is required,
inter alia, in terms of Section 7-A, Section 64 of the Act and these
Rules, no further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those
disposed of cases, where the status of juvenility has not been
determined in accordance with the provisions contained in sub-rule
(3) and the Act, requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the juvenile in
conflict with law.

23. Even though Rule 12 is strictly applicable only to determine the

age of a child in conflict with law, we are of the view that the
aforesaid statutory provision should be the basis for determining
age, even of a child who is a victim of crime. For, in our view, there
is hardly any difference insofar as the issue of minority is
concerned, between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it would be
just and appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW, PW 6.”

iv. The Supreme Court in Jarnail Singh (supra) held that the procedure for
determining the issue of minority laid down under Rule 12 of the Rules,
2007, is similar for both the victim and the juvenile. However, in Jarnail
Singh, the Supreme Court was exclusively interpreting Rule 12 of the
Rules, 2007, framed u/s 68(1) of the erstwhile J.J. ACT, 2000, which is
similar to section 94 of the new J.J. Act, 2015, but not identical, as the
newly added Section 94 which became effective from 01.01.2016 has
done away with the benefit extended to the child or juvenile by
considering his/her age on the lower side within the margin of one year.
v. Without prejudice to the above, the Supreme Court in Jarnail Singh has
only leaned towards the benefit of the lower age side to both the child in
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 conflict with law and the minor victim under the POCSO Act. Hence, I am
of the view that for determining the age of a child victim under the
POCSO Act, where the bone ossification opines her age between 15-17
years, the inclination of the Court should be towards considering the
lower side on the margin of error. The same is also in consonance with the
objectives of POCSO Act. It cannot be the intention of POCSO Act to
treat a victim who is a borderline minor, as a major in case the victim does
not have a birth certificate/school certificate and has undergone a bone
ossification test. Such an interpretation would not be in furtherance of
POCSO Act but rather in contradiction and derogation to the objective and
purpose of POCSO Act.
vi. In addition, the other evidences such as the testimonies of PW-2 (Mr.
Satpal Chawla) and PW-3 (Ms. Pushpa Rani) also point towards the lower
age of the prosecutrix. The testimonies of PW-2 and PW-3 read as under:-
“PW-2 Satpal Chawla s/o late Shri Panna Lal Chawla, Age 67
years r/o 9/14, East Punjabi Bagh, Delhi
.........On 25.5.13, it was Saturday or Sunday, accused Lakhi brought
a girl aged about 13/14 years and stated to be the daughter of her
sister and told that she wants to keep that girl for 1/2 days with
her..........”

“PW-3 Pushpa Rani w/o Inder Kishan Malik aged 85 years r/o 137,
Double Storey, New Rajender Nagar, Delhi.
…..I was sitting at my daughter's house when she brought XX
with her and she introduced XX as daughter of her sister to me. She
told me her age to be 14/15 years..........”
vii. Hence, the argument of learned counsel for the appellants that since the
bone ossification test shows the age of the prosecutrix to be between 15 to
17 years, then the prosecturix should be treated as more than 18 cannot be
accepted.
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 28. Hymen tear
i. Section 375 of IPC states that:-
“375. Rape.—A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any
other person; or
….”
ii. The testimony of PW 5 (Dr. Aditi Aggawal) who conducted the MLC of
the prosecutrix(Ex.PW5/A) reads as under: -
“PW 5 (Dr. Aditi Aggawal) Senior Resident, Obs. & Gynae, SGM
hospital Mangol Puri, Delhi
….I examined her and found that her hymen was torn completely,
however, no congestion was present. I prepared her MLC
Ex.PW5/A which is in my handwriting and bears my signatures at
point A…”
iii. In offences u/s 375 of IPC, even the slightest form of penetration is
sufficient to constitute the offence of penetrative assault. It is also not
necessary that there has to be some injury on the genitalia or any other
part of the prosecutrix‟s body. The Supreme Court in “Satyapal v. State of
Haryana”[(2009) 6 SCC 635] has observed that:-

“18. In Modi's Medical Jurisprudence, 23rd Edn., at pp. 897 and

928, it is stated:
“To constitute the offence of rape, it is not necessary that there
should be complete penetration of the penis with the emission of
semen and the rupture of hymen. Partial penetration of the penis
within the labia majora or the vulva or pudenda, with or without
the emission of semen, or even an attempt at penetration is quite
sufficient for the purpose of law. It is, therefore, quite possible to
commit legally, the offence of rape without producing any injury to
the genitals or leaving any seminal stains.”
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 iv. Hence, the contention of learned counsel of appellant No.1 that the hymen
is an old tear and there was also no edema, congestion or physical injuries
on the genitalia of the prosecutrix or any other part of her body is
therefore rejected.
v. Moreover, considering the entire evidence on record, namely the
statement of the prosecutrix, the MLC confirming her hymen tear, the FSL
report concluding the presence of semen on the underwear of the
prosecutrix which matches with that of the appellant No.1, I am also of
the view that mere absence of injuries on the vital parts/organs of the
prosecutrix is not enough to refute the otherwise strong factual matrix of
the case establishing the offences under Section 6 and 16 of the POCSO
Act.

29. Right of accused and identity of the underwear

i. It was argued by learned counsel for the appellants that the amicus had no
right to give up the rights of the accused. The factum of not objecting to
the identity of underwear was a valuable right accrued to the appellants
which could not be given away by the amicus.The counsel for the
appellant No.1 has relied upon the judgement of Pawan Kumar (supra) to
support his arguments. However, in the present case, this judgement is not
applicable as it was not the amicus who gave up right, but the appellants
themselves as the same was done in their presence. Hence, the only
conclusion that can be drawn is that right was given up in concurrence
with the appellants and not the amicus alone. In this regard, the order
dated 15.01.2014 passed by the Trial Court reads as under: -

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 “15.01.2014
Ld. APP for the state.
Both the accused in J/C with amicus curiae Ms. Sunita Gupta.
……

Statement of the prosecutrix (PW 1) recorded on 15.01.2014 in the presence of

the appellants with their amicus, reads as under: -
“……The doctor has seized my undergarment during my examination. I can
identify that undergarment. Ld. APP submitted that the case property has
not so far been received from FSL. Ld. defence counsel submitted that
she did not dispute the identity of the undergarment.”

ii. A bare perusal of the above shows that the right was given up in presence
of the appellants and it cannot be said that the same was given away
without their consent.

30. Emission of semen

The semen of appellant No.1found on the underwear of the prosecutrix is
sufficient evidence to prove the guilt of the accused in commission of the
offence. In addition, the conclusion arrived in the FSL report reads that
“DNA Profiling (STR Analysis) performed on the exhibits is sufficient to
conclude that the DNA profiles generated from the source of exhibit '2'
(Blood sample) of accused are similar with DNA profiles generated from
the source of exhibit „1c‟ (Underwear) of the prosecutrix.” There is also
no reason/explanation as to how semen of the appellant No. 1 was found
on the prosecutrix‟s underwear.

31. Contradictions/inconsistencies in the statement of the prosecutrix

i. The submission made by learned counsel for the appellants that there are
contradictions in the statement of the prosecutrix, are of no help to the

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 appellants. The Supreme Court in “Appabhai v. State of Gujarat” [1988
Supp SCC 241] observed that-

“13….The court while appreciating the evidence must not attach

undue importance to minor discrepancies. The discrepancies which
do not shake the basic version of the prosecution case may be
discarded. The discrepancies which are due to normal errors of
perception or observation should not be given importance. The
errors due to lapse of memory may be given due allowance. The
court by calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness. When a
doubt arises in respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it goes into the root
of the matter so as to demolish the entire prosecution story. The
witnesses nowadays go on adding embellishments to their version
perhaps for the fear of their testimony being rejected by the court.
The courts, however, should not disbelieve the evidence of such
witnesses altogether if they are otherwise trustworthy.
…”
ii. In the case at hand, the alleged discrepancies which have been pointed out
regarding raising of alarm and threatening the prosecutrix are of a minor
character and do not call into question the veracity of the prosecution‟s
story. The basic version regarding the manner and commission of offence
is constant. The contention of the counsel for appellants cannot be
accepted that there are contradictions, improvements and inconsistencies,
such as, firstly, as per the first statement of the prosecutrix later on
incorporated in the FIR, she could not raise alarm as the appellant No.2
had threatened her, whereas in her statement u/s 164, she stated that the
appellant had tied a piece of cloth around her mouth so she could not
make any noise. Secondly, the prosecutrix diverted from her earlier
statements that the appellants had threatened her, whereas as per PW-3,
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 the prosecutrix had given the version that the appellant No.2 had locked
her in the room. These contradictions are of a minor character which do
not shake the quality of the statement of the prosecutrix.
iii. Moreover, the Supreme Court in “State of Punjab v. Gurmit
Singh” [(1996) 2 SCC 384], the Court observed as under:-
“21…A murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The courts, therefore,
shoulder a great responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost sensitivity. The
courts should examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal nature, to throw
out an otherwise reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If for some
reason the court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases involving
sexual molestations.”

iv. I am in agreement with the view taken by the learned ASJ in the
impugned judgment that there is no reason to disbelieve the testimony of
the prosecutrix as this conclusion was arrived at after considering all the
evidences on record and testimonies of the witnesses. In this regard,
relevant portion of the impugned judgment is as under: -
“35. From the above discussion, it is clear that the guilt of the accused
can be proved by the sole testimony of the prosecutrix. In the present
case, Ms. „X‟ has deposed against the accused persons. There are no
contradictions or any other reasons to disbelieve her testimony. Hence,
it is duly proved that the accused Raju Yadav has committed penetrative
sexual assault repeatedly upon Ms. „X‟.”

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 32. DNA
i. DNA tests are widely used and accepted for its accuracy. It has been
argued by learned counsel for appellant No.1 that the DNA which was
found on the underwear of the prosecutrix was “similar” and not
“identical” to that of appellant No.1. It has been held by the Supreme
Court in “Pantangi Balarama Venkata Ganesh v. State of A.P.,” [(2009)
14 SCC 607]that the use of the word „similar‟ and not „identical‟ in the
report by the DNA expert is not material, when there was other evidence
available on record as well. The relevant portion is reproduced as under: -
“44. We are not oblivious of the fact that the experts used the term
“similar” and not “identical”. For the purpose of this case it may not
be of much consequence as this Court has not taken into consideration
the evidence of DNA experts alone for the purpose of recording a
judgment of conviction. It has been considered along with the other
evidence. The prosecution case has been considered as a whole.
Cumulative effect of the evidences adduced before the learned trial
Judge have been taken into consideration for the purpose of arriving
at a finding of guilt against the appellant.”
ii. Even in the present case, the Sessions Court has not relied upon the DNA
exclusively but has taken into consideration the cumulative evidence and
testimonies of all the witnesses, to arrive at the guilt of the appellants.
According to me, the impugned judgment of the Sessions Court is based
on a combined reading of facts and testimonies of the witnesses and
therefore, cannot be faulted.
[

33. Delay in lodging the FIR

i. It is a settled law that in cases like rape, the delay in lodging of FIR
cannot be a ground to disbelieve the version of the victim. In Gurmit
Singh (supra), the Supreme Court observed that:-
“8…The courts cannot over-look the fact that in sexual offences
delay in the lodging of the FIR can be due to variety of reasons
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 particularly the reluctance of the prosecutrix or her family members
to go to the police and complain about the incident which concerns
the reputation of the prosecutrix and the honour of her family. It is
only after giving it a cool thought that a complaint of sexual offence
is generally lodged.”

ii. The prosecutrix was dropped off at her employer‟s house on 27.05.2013
and the complaint was made on 28.05.2013. The delay in the present case
is minima land the contention of the learned counsel for the appellants
that there is delay in filing the FIR thus cannot be given weightage.

34. Motive of appellant No.2

It is submitted by learned counsel for appellant No.2 that no motive was
established as to why appellant No.2, being the maternal aunt of the
prosecutrix, would support appellant No.1 in committing rape upon the
prosecutrix. Similarly, no motive is also established as to why the
prosecutrix would falsely implicate appellant No.2 in the present case.
The statement of the prosecutrix is of sterling quality. The combined
evidence of the prosecution lays down the foundational facts which
disclose the commission of offence and this Court finds no reason to
disbelieve or discredit the statement of the prosecutrix.

35. Objection of the appellants towards prosecutrix’s relation with Raju

and Raju not made a witness
The prosecutrix has deposed that Raju was employed at the house of
Pushpa Rani prior to her employment. Even testimony of PW-3 (Pushpa
Rani) corroborates the testimony of prosecutrix and reads as under: -
“No person by the name of Raju ever worked with me. On 25.5.13,
accused Lakhi visited my house at about 4 or 5 p.m. However, I do not
remember the exact time. On27.5.13, prosecutrix returned in the early
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 aged about 15/16 years was working with me and prosecutrix
developed physical relations with her and Raju was removed by me
from the services.”
Hence, the contention of the appellants that Raju was not made a witness
and they were falsely implicated in the case because they raised an
objection towards the prosecutrix‟s relationship with one Raju, who was
employed at the prosecutrix‟s place of employment cannot be accepted.

CONCLUSION

36. The judgement of the learned Trial Court is well reasoned. The Trial Court
has correctly observed that the fact that both the appellants were
employed at the same place at the time of incident and the prosecutrix was
also residing at their place from 25.05.2013 till 27.05.2013which proves
that the offence has taken place and the same is also corroborated by the
testimony of PW-3 (Ms. Pushpa Rani). In addition, it has also been
correctly observed that the DNA profiles generated from the exhibits were
sufficient to prove the guilt of appellant No.1 in commission of the
offence.
37. The testimony of PW-5 (Dr. Aditi Aggarwal) has explained that
congestion over the area of the body is usually present in injuries which
are less than 24 hours old. The fact that the absence of congestion in the
present case is possible due to lapse of time has also been rightly
appreciated by the learned Trail Court.
38. The learned Trial Court has also rightly relied upon the judgements to
state that the testimony of the victim alone is sufficient to prove the guilt
of the accused and minor contradictions or insignificant discrepancies in
the statement of a prosecutrix should not be a ground for throwing out an
otherwise reliable prosecution case.

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 39. There is also sufficient evidence against the appellant No.2 in abetting the
offence committed by appellant No.1, being her presence in the room at
the time of commission of offence and the testimony of the prosecutrix.
The role of appellant No.2 in commission of the offence has also been
correctly examined by the learned Trial Court.
40. It is a settled position of law that the statement of prosecutrix can be the
sole basis for conviction unless there are cogent reasons for the Court to
be hesitant in believing the statement at its face value or to seek
corroboration. The Supreme Court in “State of H.P. v. Sanjay
Kumar”[(2017) 2 SCC 51] held that:-
“30…We have already discussed above the manner in which the
testimony of the prosecutrix is to be examined and analysed in
order to find out the truth therein and to ensure that deposition of
the victim is trustworthy. At the same time, after taking all due
precautions which are necessary, when it is found that the
prosecution version is worth believing, the case is to be dealt with
all sensitivity that is needed in such cases.

31…By now it is well settled that the testimony of a victim in cases

of sexual offences is vital and unless there are compelling reasons
which necessitate looking for corroboration of a statement, the
courts should find no difficulty to act on the testimony of the victim
of a sexual assault alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking corroboration to a
statement before relying upon the same as a rule, in such cases,
would literally amount to adding insult to injury. The deposition of
the prosecutrix has, thus, to be taken as a whole. Needless to
reiterate that the victim of rape is not an accomplice and her
evidence can be acted upon without corroboration. She stands at a
higher pedestal than an injured witness does. If the court finds it
difficult to accept her version, it may seek corroboration from some
evidence which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to equate one
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 who is a victim of the lust of another with an accomplice to a crime
and thereby insult womanhood. It would be adding insult to injury
to tell a woman that her claim of rape will not be believed unless it
is corroborated in material particulars, as in the case of an
accomplice to a crime.”

41. In the present case, the testimony of the prosecutrix is of sterling quality
and inspires the confidence of this Court. This Court finds no reason to
discredit or disbelief the statement of the prosecutrix. In addition, the
statement of the prosecutrix has also been duly corroborated. The
intention of the prosecutrix in falsely implicating the appellants can also
not be made out.
42. The appellants have not been able to rebut the presumption of guilt which
operates against them under section 29 of POCSO Act. The prosecution
has successfully proved the guilt of the appellants in committing the
offence beyond a reasonable doubt.
43. In this view of the matter, I find no reason to interfere with the judgement
dated 31.01.2020 and order on sentence dated 27.06.2020 passed by the
learned Special Judge (POCSO ACT)/ ASJ-01, (West), Tis Hazari Courts,
Delhi, in case S.C. No. 55924/2016, FIR No. 224/2013, u/s
376/342/506/120B/109 IPC and section 4/6 of POCSO Act, registered at
P.S. Punjabi Bagh, Delhi.
44. The appeals are accordingly dismissed.
45. Copy be sent to DSLSA Member Secretary to ensure that compensation
has been paid to the prosecutrix.

JASMEET SINGH, J
MAY 16, 2023 / st

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