Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Del) 1028

2026 DHC 4028
IN THE HIGH COURT OF DELHI AT NEW DELHI
CHANDRASEKHARAN SUDHA, J.
Nirmal Kumar – Appellant
Versus
State Of NCT Of Delhi And Anr. – Respondents
Crl.A. 844 of 2024 & CRL.M.(BAIL) 512 of 2026
Decided On : 08-05-2026
Advocates Appeared :
For the Appellant : Ms. Aishwarya Rao and Ms. Mansi Rao, Advocates
For the Respondents : Mr. Utkarsh, APP for the State with SI Reena Kumari, P.S. Budh Vihar.

Advocates:
For the Appellants/Petitioners: Aishwarya Rao, Mansi Rao
For the Respondents: Utkarsh

Statutory presumptions under special enactments cannot be triggered without the prosecution first establishing the foundational facts constituting the alleged offence. Conviction for aggravated sexual assault requires clear, specific evidence of the nature of the act, particularly in the absence of supporting medical findings.

Headnote:(A) Criminal Law - Kidnapping and Abduction - Essential ingredients - Distinction between voluntary accompaniment and 'taking' - Requirement for evidence of inducement or active participation by the accused - In the absence of such evidence, convictions under relevant penal provisions for kidnapping are unsustainable. (Para 19)

(B) Special Statutes - Protection of Children - Statutory presumption of guilt - Requirement to establish foundational facts - Statutory presumptions do not operate automatically and are contingent upon the prosecution establishing the primary ingredients of the offence beyond reasonable doubt - Vague testimony regarding physical contact without corroborative medical evidence fails to satisfy the burden of proof. (Paras 21-23)

Facts of the case:
The appellant was convicted for kidnapping and aggravated sexual assault of a minor. The prosecutrix alleged the accused enticed her into marriage and subsequently committed non-consensual sexual acts. The defense contended that the prosecutrix had voluntarily eloped and that the charges were a result of false implication. The prosecutrix refused an internal medical examination, and no physical evidence of the alleged acts was presented at trial.

Findings of Court:
The court held that the prosecution failed to demonstrate that the appellant actively enticed or kidnapped the minor, noting a distinction between 'taking' someone and a minor voluntarily accompanying another. The testimony regarding the alleged sexual acts was found to be vague and lacked supporting medical evidence to confirm the nature of the acts performed.

Issues: Whether the prosecution successfully established the foundational facts, specifically regarding the act of kidnapping and the specific nature of the alleged sexual assault, to sustain a conviction under the special statute.

Ratio Decidendi: Statutory presumptions under special penal legislation do not relieve the prosecution of its initial burden to prove the foundational elements of the offence. Without clear, specific testimony or medical corroboration, the prosecution fails to establish that an aggravated offence occurred, and the benefit of doubt must be extended to the accused.

Result: Appeal allowed; the appellant is acquitted of all charges and ordered to be released.

Table of Content
1. summary of trial court conviction and procedural background. (Para 1 , 2 , 3 , 4 , 5 , 6 , 8 , 9)
2. contentions regarding evidence insufficiency and penetrative sexual assault definitions. (Para 10 , 11)
3. appreciation of victim testimony and medical/documentary evidence on record. (Para 12 , 13 , 14 , 15 , 16 , 17)
4. distinction between voluntary minor departure and kidnapping/enticement. (Para 18 , 19)
5. failure to prove penetrative assault and limits of section 29 pocso presumption. (Para 20 , 21 , 22 , 23)
6. final acquittal and cancellation of bail bonds. (Para 24 , 25)

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374(2) read with Section 482 of the Criminal Procedure Code, 1973 (the Cr.P.C.), the sole accused in Sessions Case No. 588/2022 on the file of the Additional Sessions Judge (PoCSO) North West, Rohini District Courts, Delhi, assails the judgement dated 12.12.2024 and order on sentence dated 22.07.2024, as per which he has been convicted and sentenced for the offences punishable under Sections 366, 363 and 376(2)(n) of the Indian Penal Code, 1860 (the IPC) and Section 5 (l) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act).

2. The prosecution case is that on 05.03.2022, at about 02:00 PM, the accused kidnapped PW1, a minor girl aged about 15 years, out of the keeping of the lawful guardian with the intent to force or seduce her into illicit intercourse, took her to the house of his brother at Haridwar, where he repeatedly committed aggravated penetrative sexual assault/ rape on her. Hence, as per the chargesheet/ final report, the accused is alleged to have committed the offences punishable under the abovementioned Sections.

3. On the basis of Ext. PW2/A FIS/FIR of PW2, given on 05.03.2022, Crime no. 204/2022, Budh Vihar Police Station, i.e., Ext. PX1/A FIR was registered by PW4, Sub-Inspector. PW6 Sub-Inspector conducted investigation into the crime and on completion of the same, filed the chargesheet/final report alleging commission of the offences punishable under the aforementioned Sections.

4. When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him, as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court, vide order dated 21.07.2022, framed a Charge under Sections 363, 366, 376(2)(n) IPC and Section 5(l) read with 6 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs. 1 to 6 were examined and Ext. PX1/A-D, Ext. PW1/A, Ext. PW2/A, Ext. PW3/A-D, Ext. PW4/A, Ext. PW5/A-C, and Ext. PW6/A-C were marked in support of the case.

6. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. The accused submitted that he has been falsely implicated in the present case and that PW1 had lodged a false case against him at the instance of PW2, her mother. The accused also submitted that he was told by PW1 and her mother that PW1 was 18 years old when he had visited their house.

7. After questioning the accused under Section. 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Section 232 Cr.P.C. is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (See Moidu K. vs. State of Kerala , 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Section 232 Cr.P.C. has caused any prejudice to him.

8. No oral or documentary evidence was adduced by the accused.

9. Upon consider

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2026 Supreme(Del) 1028

Cases Referred (2)