Child’s Mother Tried to Make Her Deny Sexual Assault: Delhi High Court Relies on Victim’s Truthful Re-Examination and Upholds Conviction
Facts
On 30 August 2010, at approximately 7:00 PM, a seven-year-old girl was sexually assaulted on a terrace near Servant Quarter No. 3-A, HUDCO Place, close to Ansal Plaza in New Delhi.
The child had been playing outside with other neighbourhood children. When she did not return, her mother went looking for her and learned about the alleged assault by Pankaj Kumar, a neighbour known to the child.
The matter was reported to the police. An First Information Report was registered, the appellant was arrested, and the child was medically examined at approximately 9:50 PM on the same evening.
The medical examination did not reveal a hymenal tear, bleeding or other physical injury. However, the doctor found:
- Multiple white stains on the child’s frock and undergarments;
- White discharge in the labial folds and fourchette; and
- Mild to moderate redness of the labia majora.
The child’s clothes and biological samples were preserved for forensic examination. The forensic reports did not conclusively establish that the semen found on her clothes belonged to Pankaj Kumar.
The prosecution examined nine witnesses. The child’s mother and maternal grandmother did not fully support the prosecution at trial and were treated as hostile witnesses.
During her testimony, the child initially gave answers favourable to the appellant. In re-examination, however, she stated that her mother had instructed her to say that Pankaj Kumar had done nothing and that her dress had become dirty because she fell in mud. The child then confirmed that her earlier account—that Pankaj had removed his underwear and jumped upon her—was true.
In his statement under Section 313 of the Code of Criminal Procedure, Pankaj Kumar stated that he had been alone on the terrace and was masturbating when the child suddenly appeared. He claimed that semen lying on the terrace floor accidentally soiled her frock.
The trial court rejected this explanation and convicted him under Section 376 read with Section 511 of the Indian Penal Code for attempting to commit rape. On 8 June 2012, he was sentenced to two years’ rigorous imprisonment and a fine of ₹5,000, with three months’ simple imprisonment in default of payment.
Pankaj Kumar challenged both the conviction dated 30 May 2012 and the sentence before the Delhi High Court.
Issues
- Whether the testimony of the child victim was reliable despite variations in her account and indications that she had been tutored.
- Whether the testimony of the victim’s hostile mother and grandmother could still be considered and relied upon.
- Whether the medical and forensic evidence sufficiently corroborated the allegation of sexual assault.
- Whether the appellant’s explanation regarding the presence of semen on the child’s clothes was reasonably probable.
- Whether the acts attributed to the appellant amounted to an attempt to commit rape under Section 376 read with Section 511 of the Indian Penal Code.
- Whether the conduct fell short of attempted rape and constituted only the lesser offence of assault or criminal force with intent to outrage modesty under Section 354.
- Whether the conviction could be sustained despite the forensic reports not conclusively identifying the appellant as the source of the semen.
Petitioner’s Arguments
Pankaj Kumar argued that the victim’s mother and maternal grandmother had turned hostile and did not support the material allegations made by the prosecution.
He contended that the child gave three different versions of the incident, making her testimony inconsistent and unsafe as the basis for conviction.
The defence emphasised that neither the medical examination nor the forensic reports conclusively connected the appellant with the alleged offence. There was no hymenal tear, bleeding or physical injury, and the forensic analysis did not identify him as the source of the semen.
It was submitted that the acts alleged against him had not reached the stage of an attempt to commit rape. According to the appellant, an attempt requires conduct sufficiently close to the completed offence, whereas the evidence did not prove the necessary penultimate act.
The appellant therefore argued that, even if the prosecution evidence were stretched to its maximum, the case could fall only under Section 354 of the Indian Penal Code and not Section 376 read with Section 511.
He sought the setting aside of his conviction and sentence or, alternatively, alteration of the conviction to the lesser offence.
Respondent’s Arguments
The State argued that the evidence had to be examined comprehensively rather than by isolating individual weaknesses.
According to the prosecution, the total effect of the child’s testimony, the original complaint, the medical findings and the appellant’s own explanation established his involvement beyond reasonable doubt.
The State submitted that the mother and grandmother’s failure to support the entire case did not erase their testimony. Those portions that remained credible and were corroborated by independent evidence could still be relied upon.
It placed particular reliance on the victim’s re-examination. The child expressly admitted that her mother had instructed her to say that the appellant had done nothing and that the stains on her dress resulted from falling in mud. She then confirmed that her earlier allegation against the appellant was true.
The prosecution also relied on Pankaj Kumar’s statement under Section 313. His acknowledgment that he was masturbating on the terrace when the child arrived provided an explanation for his presence and linked him with the circumstances in which semen was found on the child’s clothes.
The State maintained that the acts proved by the evidence went beyond mere molestation and were sufficiently proximate to the completed offence of rape.
Analysis of the Law
Evidentiary Value of a Hostile Witness
Indian criminal law does not require a hostile witness’s entire testimony to be discarded. A court must separate credible portions from unreliable ones and may rely on any part supported by other trustworthy evidence.
The principle falsus in uno, falsus in omnibus—false in one thing, false in everything—is not applied mechanically in India. Courts are required to separate the truthful part of the testimony from the false or influenced part.
The child’s mother and grandmother did not support the prosecution in full. Nevertheless, their evidence concerning the incident, police intervention, medical examination and identification of the appellant remained relevant when read with the other evidence.
Appreciation of a Child Witness’s Testimony
A child witness’s evidence must be evaluated in light of the child’s age, vulnerability, trauma and susceptibility to influence.
Variations arising because a child has been tutored do not necessarily make the entire testimony unreliable. The court must determine which version is spontaneous, consistent with contemporary records and corroborated by medical or surrounding evidence.
Here, the victim’s admission that her mother had told her what to say explained why parts of her testimony favoured the appellant. Her subsequent confirmation of the original allegation was consistent with her earlier statement and the medical evidence.
Medical and Forensic Corroboration
The absence of a hymenal tear, bleeding or injury does not necessarily rule out an attempted sexual offence, especially where the allegation does not involve completed penetration.
Although the forensic report did not conclusively identify the appellant as the source of the semen, the white stains, discharge and redness recorded during the medical examination shortly after the incident supported the child’s account of sexual contact.
The Court treated the medical evidence as corroborative rather than as the sole basis of conviction.
Attempt Versus Preparation
An attempt occurs when the accused’s conduct moves beyond mere intention or preparation and becomes directly connected with the commission of the offence.
The offence need not be completed. It is sufficient if the accused has performed acts immediately directed towards its commission and the offence remains incomplete because of interruption or some other circumstance.
The Court considered the removal of the child’s undergarment, the appellant’s exposure and the presence of semen on the child’s external genital area as acts closely connected with penetration. They therefore went beyond the scope of Section 354 and constituted an attempt to commit rape.
Effect of the Accused’s Section 313 Statement
A statement under Section 313 of the Code of Criminal Procedure is not substantive prosecution evidence by itself. However, an explanation furnished by an accused may be considered alongside the prosecution evidence.
Where an explanation is inherently improbable or fails to account for an incriminating circumstance, it may strengthen the conclusion drawn from otherwise reliable evidence.
Pankaj Kumar’s claim that semen lying on the terrace floor accidentally reached the child’s frock did not explain how it was also found in or around the child’s labial area.
Precedent Analysis
K.P. Tamilmaran v. State by Deputy Superintendent of Police
The Supreme Court reiterated that testimony does not disappear from the record merely because a witness is declared hostile. Courts may rely on portions that are credible and corroborated by other evidence.
It also recognised that witnesses may turn hostile for several reasons, including pressure or influence. The court’s responsibility remains to discover the truth from all admissible evidence.
The Delhi High Court applied this principle to the testimony of the victim’s mother and grandmother.
Bhajju v. State of Madhya Pradesh
The Supreme Court held that hostile-witness testimony remains admissible and may support a conviction to the extent that it corroborates the prosecution’s case and is supported by reliable evidence.
This precedent enabled the High Court to consider the portions of the family members’ testimony that confirmed the occurrence, the complaint, the medical examination and the appellant’s identity.
Court’s Reasoning
The High Court recognised that the child’s mother and grandmother did not testify as the prosecution expected. It nevertheless found that their evidence was not wholly unusable.
The grandmother confirmed that she learned about an incident involving her granddaughter, that the police arrived and took away the appellant, and that Pankaj Kumar was the person involved in the proceedings.
The child’s mother stood by the complaint that led to the registration of the First Information Report and identified the appellant. Her act of taking the child for an immediate medical examination was also consistent with a serious allegation of sexual assault.
The Court considered the medical examination particularly significant because it took place less than three hours after the incident. The recorded history named the appellant, while the physical findings showed white stains, discharge and redness around the child’s external genital area.
The Court inferred that the mother and grandmother had likely been won over or influenced. It referred to the family’s vulnerable social and economic position, including its residence in servant quarters and minority status.
The child’s evidence was treated as crucial. Her initial answers suggested that she had been tutored to protect the appellant. During re-examination, she expressly stated that her mother had instructed her to say:
- That her frock became dirty because she fell in mud; and
- That Pankaj had done nothing to her.
She then confirmed that her earlier statement about Pankaj removing his underwear and jumping upon her was true.
The Court found this admission credible because it explained the contradictions in the child’s testimony and brought her account back in line with her earlier statement, the complaint and the medical findings.
Pankaj Kumar’s own explanation also worked against him. He admitted that he had been masturbating on the terrace when the child appeared. The Court considered it improbable that semen lying on the floor could have accidentally reached both the child’s clothes and her labial area.
Although the forensic reports did not scientifically establish that the semen belonged to the appellant, the Court held that the surrounding circumstances led to only one reasonable conclusion regarding his involvement.
The Court rejected the request to reduce the offence to Section 354. It found that the child’s undergarment had been removed, the appellant had exposed himself, and semen was present around the external genital area. These facts showed that the acts had moved beyond molestation and were immediately directed towards penetration.
The offence was not completed, but the appellant had done substantially everything necessary to proceed with it before being interrupted or ejaculating. His conduct therefore constituted attempted rape.
Conclusion
The Delhi High Court dismissed Pankaj Kumar’s appeal and upheld his conviction under Section 376 read with Section 511 of the Indian Penal Code.
The Court affirmed the sentence of two years’ rigorous imprisonment and a fine of ₹5,000, with three months’ simple imprisonment in default of payment.
Pankaj Kumar was directed to surrender immediately to serve the remaining sentence. He was granted the benefit of set-off under Section 428 of the Code of Criminal Procedure for any period already spent in custody.
Case Details
Case: Pankaj Kumar v. State
Court: High Court of Delhi at New Delhi
Case Number: Criminal Appeal 739/2012 and Criminal Miscellaneous (Bail) 1247/2012
Judge: Hon’ble Mr Justice Vimal Kumar Yadav
Date: 16 July 2026
Result: Appeal dismissed; conviction and two-year sentence for attempted rape upheld, with direction to surrender immediately and benefit of set-off for custody already undergone.
