Girl’s Consistent Testimony and Medical Evidence Proved Sexual Assault; Delhi High Court Reduces Sentence From 14 to 12 Years
Facts
On March 3, 2019, at approximately 4:00 p.m., Shamsher Alam allegedly approached an 11-year-old girl and persuaded her to accompany him by saying that it was his daughter’s birthday.
According to the prosecution, he took the child out of her parents’ custody without their consent and led her to a secluded jungle area near Khera Dabar Village Road, New Delhi.
The child alleged that Shamsher removed her clothes and committed penetrative sexual assault upon her. When she cried and attempted to raise an alarm, he allegedly pressed her throat and threatened her against disclosing the incident.
An unknown motorcyclist later found the child on the road and dropped her near her residence.
The child’s statement was recorded on March 4, 2019, resulting in registration of First Information Report No. 70/2019 at Chhawla Police Station. After investigation, Shamsher was prosecuted for kidnapping, abduction for illicit intercourse, attempted murder, criminal intimidation and aggravated penetrative sexual assault.
The accused denied the allegations. He claimed that he worked as a daily-wage labourer under the child’s maternal grandfather and had gone to demand unpaid wages. According to him, the child voluntarily accompanied him to show the location where her mother and grandfather were working. He alleged that the case arose from a financial dispute.
On November 28, 2024, the trial court convicted him under Sections 363, 366 and 307 of the Indian Penal Code and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. The High Court judgment also records that the conviction and sentence for criminal intimidation under Section 506 remained operative.
For aggravated penetrative sexual assault, the trial court awarded 14 years’ rigorous imprisonment and a fine of ₹10,000. It also imposed:
- Three years’ rigorous imprisonment under Section 363.
- Five years’ rigorous imprisonment under Section 366.
- Four years’ rigorous imprisonment under Section 307.
- Separate fines for the Indian Penal Code offences.
The sentences were directed to run concurrently.
Shamsher challenged the convictions and sentences before the Delhi High Court under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Issues
- Whether the child’s testimony was sufficiently consistent and reliable to sustain the convictions.
- Whether the prosecution’s failure to identify and examine the motorcyclist who dropped the child home was fatal.
- Whether the accused was falsely implicated because of a financial dispute with the child’s family.
- Whether the prosecution proved that the child was below 12 years of age.
- Whether the school admission register was reliable evidence of age despite the absence of supporting documents at admission.
- Whether the school principal’s certificate supplied to the investigating officer was admissible.
- Whether the evidence established kidnapping and abduction for the purpose of illicit intercourse.
- Whether the medical and oral evidence proved aggravated penetrative sexual assault.
- Whether pressing the child’s throat established the intention or knowledge necessary for attempted murder.
- Whether the 14-year sentence under Section 6 of the Protection of Children from Sexual Offences Act was excessive.
Petitioner’s Arguments
The appellant argued that the trial court wrongly relied upon the child’s testimony despite material inconsistencies and improvements.
He submitted that the unknown motorcyclist was the first independent person to see the child after the alleged incident. Since that person took her home, his evidence could have clarified her physical and emotional condition and the circumstances in which she was found.
The prosecution made no effort to trace or examine him. According to the appellant, withholding such an important independent witness weakened the prosecution’s case.
The appellant reiterated that he had been falsely implicated because of a financial dispute with the child’s family. He claimed that he had demanded unpaid wages from her maternal grandfather, resulting in a heated argument.
He also challenged proof of the child’s age. The school principal admitted that no birth certificate or other documentary proof had been produced when the child was admitted to school. No affidavit concerning her date of birth was obtained from her parents.
The appellant argued that an unsupported entry in the school admission register could not prove beyond reasonable doubt that the child was below 12.
Without prejudice to his challenge on merits, he sought reduction of the 14-year sentence to the then-applicable statutory minimum of 10 years. He relied upon his age of 23 years at the time of the incident and the absence of previous criminal antecedents.
Respondent’s Arguments
The State argued that the trial court’s judgment was based on a proper assessment of the complete evidentiary record and contained no error requiring interference.
The child had consistently described:
- The false pretext used to take her away.
- The secluded place to which she was taken.
- The sexual assault.
- The threats and pressure applied to her throat.
Her account remained materially consistent in the First Information Report, her statement under Section 164 of the Code of Criminal Procedure and her testimony at trial.
The prosecution also relied upon medical evidence which recorded findings consistent with recent sexual intercourse and injuries on the child’s neck.
Counsel assisting the child similarly argued that the evidence was sufficient to prove all the charged offences and that the appeal should be dismissed.
Analysis of the Law
Kidnapping from lawful guardianship
Section 361 of the Indian Penal Code defines kidnapping from lawful guardianship. It applies where a person takes or entices a female below 18 years out of the keeping of her lawful guardian without the guardian’s consent.
The child’s consent or willingness to accompany the accused is not decisive. The relevant question is whether she was removed or enticed from the guardian’s custody without permission.
Section 363 prescribes punishment for such kidnapping.
Kidnapping for illicit intercourse
Section 366 applies where a woman or girl is kidnapped or abducted with the intention that she be forced or seduced to illicit intercourse.
The accused’s intention may be inferred from his conduct after taking the child away. Here, the alleged sexual assault immediately following the removal was direct evidence of the purpose for which she was taken.
Aggravated penetrative sexual assault
Section 3 of the Protection of Children from Sexual Offences Act defines penetrative sexual assault.
Section 5(m) treats the offence as aggravated when committed upon a child below 12 years. Section 6 prescribes the punishment.
The prosecution was required to establish:
- The act of penetrative sexual assault.
- That the victim was a child.
- That she was below 12 years on the date of the offence.
Reliance on the child’s testimony
A conviction can rest upon the testimony of a single witness if it is cogent, credible and confidence-inspiring.
The law requires evidence to be weighed for its quality, not counted according to the number of witnesses. Failure to examine a collateral witness does not defeat the case where the principal witness reliably proves the incident.
Proof of age
A school admission-register extract may be relied upon where it is properly proved through the competent school witness and its entries are not effectively challenged.
A certificate newly prepared by a school principal and supplied to the investigating officer during investigation stands on a different footing. Such a certificate may amount to a statement made to the police and attract the restriction under Section 162 of the Code of Criminal Procedure.
The underlying admission register, however, is an independent institutional record and may be separately proved.
Attempt to murder
Section 307 requires an act performed with the intention or knowledge associated with murder.
The prosecution must establish that the accused intended:
- To cause death;
- To cause an injury known to be likely to cause death;
- To cause an injury sufficient in the ordinary course to cause death; or
- To commit an act so imminently dangerous that it would probably cause death.
The existence of an injury does not automatically prove this mental element. The Court must examine the purpose, nature and circumstances of the act.
Sentencing under the pre-amendment law
The offence occurred before the 2019 amendment to Section 6 of the Protection of Children from Sexual Offences Act.
Under the provision then in force, imprisonment could not be less than 10 years and could extend to imprisonment for life.
While choosing a fixed term above the statutory minimum, the Court must consider the circumstances of the offence and any relevant aggravating or mitigating factors.
Precedent Analysis
Moidu K. v. State of Kerala, 2009 SCC OnLine Ker 2888
The trial court had not separately heard the accused under Section 232 of the Code of Criminal Procedure after completion of the prosecution evidence.
Relying on Moidu K., the High Court held that such non-compliance does not automatically invalidate the trial. Serious and substantial prejudice must be shown. The appellant had not demonstrated any such prejudice.
Sasi v. State of Kerala, 2019 KHC 465
This decision treated a certificate prepared by a school authority and supplied to the investigating officer during investigation as a statement attracting Sections 161 and 162 of the Code of Criminal Procedure.
Applying this principle, the High Court excluded the principal’s certificate but separately relied upon the proved extract of the school admission register.
Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808; Kanu Ambu Vish v. State of Maharashtra, (1971) 1 SCC 503; Datar Singh v. State of Punjab, (1975) 4 SCC 272; and C. Chenga Reddy v. State of Andhra Pradesh, (1996) 10 SCC 193
These decisions were cited in connection with the evidentiary bar governing statements made to investigating officers. The High Court used these principles to distinguish the inadmissible certificate from the underlying school record.
Om Parkash v. State of Punjab, 1961 SCC OnLine SC 72
The Supreme Court explained that Section 307 requires an act committed with the intention or knowledge necessary for murder. The act need not immediately result in death, but the relevant murderous mental element must exist.
The High Court found that this mental element had not been proved merely because the appellant pressed the child’s neck.
Hari Mohan Mandal v. State of Jharkhand, (2004) 12 SCC 220
The Supreme Court held that an injury capable of causing death is not essential for Section 307. Intention may be inferred from circumstances independently of the injury.
Conversely, an injury alone does not establish attempted murder. Applying that principle, the High Court found neck injuries but no sufficient evidence of intention or knowledge to cause death.
Court’s Reasoning
The child consistently stated that Shamsher persuaded her to accompany him, took her to a secluded area and sexually assaulted her.
Her account remained materially consistent in:
- Her first statement to the police.
- Her statement before the Magistrate under Section 164.
- Her testimony before the trial court.
Nothing significant emerged during cross-examination to discredit her account.
The medical examination recorded findings consistent with recent sexual intercourse and a torn hymen. The neck injuries also supported her allegation that the accused had pressed or choked her throat.
The kidnapping charges were established because the child was taken from her parents’ custody without consent. Her subsequent sexual assault showed the intention behind inducing her to leave.
The prosecution’s failure to examine the motorcyclist was not fatal. He did not witness the kidnapping or assault. At most, he could have proved that he found the child and dropped her near her home, which was only a collateral circumstance.
The financial-dispute defence was inconsistent. During the child’s cross-examination, the defence suggested that her mother owed money. In his statement under Section 313, the accused claimed that the transaction was with her maternal grandfather.
The child’s brother testified that their mother had repaid all dues. That statement was not challenged. No supporting material was produced to substantiate the false-implication theory.
On age, the Court agreed that the principal’s certificate prepared for the investigating officer was inadmissible. However, the school admission-register extract recorded the child’s date of birth as August 13, 2008.
The defence had not suggested to the principal that the register entry was false or that the parents supplied incorrect information. The First Information Report, medical record, Section 164 statement and trial record also consistently recorded her age as 11. The Court therefore found that she was below 12 on the date of the offence.
The attempt-to-murder conviction was treated differently. Although the neck injuries corroborated the allegation of pressure being applied, the evidence did not establish that the appellant intended or knew his act was likely to cause death.
The essential mental element for Section 307 was therefore absent, entitling him to acquittal on that charge.
Regarding sentence, the trial court had imposed a fixed term of 14 years—the highest fixed term considered by it—without giving sufficiently cogent reasons. Considering the appellant’s age and absence of criminal antecedents, the High Court found that 12 years’ rigorous imprisonment would serve the ends of justice.
Conclusion
The Delhi High Court found the child’s testimony credible and materially consistent. It was supported by medical evidence and sufficiently established kidnapping, abduction for illicit intercourse and aggravated penetrative sexual assault upon a child below 12.
The prosecution’s failure to examine the motorcyclist was immaterial because he had not witnessed the principal offences. The age challenge also failed because the proved school admission register established that the child was 11.
However, the act of pressing the child’s throat, though corroborated by neck injuries, did not prove the intention or knowledge necessary for attempted murder.
The appeal was partly allowed. The Court:
- Upheld the convictions and sentences under Sections 363 and 366.
- Acquitted Shamsher Alam of attempted murder under Section 307.
- Upheld the conviction under Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act.
- Reduced the sentence under Section 6 from 14 years to 12 years’ rigorous imprisonment.
- Confirmed the conviction and sentence under Section 506 for criminal intimidation.
Case Details
Case: Shamsher Alam v. State, National Capital Territory of Delhi
Court: High Court of Delhi at New Delhi
Case Number: Criminal Appeal 1013/2025
Judge: Justice Chandrasekharan Sudha
Date: July 17, 2026
Result: Appeal partly allowed; kidnapping, abduction for illicit intercourse, criminal intimidation and aggravated penetrative sexual assault convictions upheld; attempt-to-murder conviction set aside; principal sentence under Section 6 of the Protection of Children from Sexual Offences Act reduced from 14 years to 12 years
