The High Court of Delhi has partially allowed an appeal filed by a man convicted of kidnapping and rape, upholding his conviction for penetrative sexual assault under Section 376(2)(n) of the Indian Penal Code (IPC) while setting aside his conviction for kidnapping and abduction. Justice Chandrasekharan Sudha observed that while the evidence suggested the minor victim had accompanied the accused voluntarily, her consent was “immaterial” in law due to her being under the legally prescribed age of consent at the time of the incident.
Background
The case originated from an FIR registered on January 20, 2014, at Gokal Puri Police Station, based on a complaint by the father of the victim (PW1). The prosecution alleged that the accused, Suhail, kidnapped the minor girl (aged approximately 15 years and 6 months) from her parents’ guardianship and took her to hotels in Delhi and Rampur, U.P., where he committed penetrative sexual assault against her will.
On November 11, 2016, the Additional Sessions Judge (North-East), Karkardooma Courts, convicted the accused under Sections 363 (kidnapping), 366 (kidnapping for illicit intercourse), and 376(2)(n) (rape) of the IPC, as well as Section 6 of the POCSO Act. He was sentenced to terms ranging from 7 to 10 years of rigorous imprisonment. The accused subsequently challenged this judgment before the High Court.
Arguments of the Parties
The counsel for the appellant/accused argued that the prosecution failed to conclusively establish the victim’s minority. He contended that the birth certificate (Ext. PW5/A) was unreliable and suggested that based on the victim’s attainment of menarche in 2007, she would have been an adult by 2016. Furthermore, it was argued that the victim’s statements were inconsistent and that she had voluntarily accompanied the accused. The defense also claimed prejudice, asserting that the specific issue of the victim’s age was not put to the accused during his examination under Section 313 Cr.P.C.
The Additional Public Prosecutor and the counsel for the victim maintained that the birth certificate was valid evidence of minority. They argued that once minority is established, the question of consent becomes irrelevant. The accused himself had admitted to sexual intercourse in his Section 313 statement, albeit claiming it was consensual.
Court’s Analysis
The High Court examined the evidence regarding kidnapping and abduction first. Justice Sudha noted significant inconsistencies in the victim’s testimony, pointing out that she admitted to voluntarily joining the accused after being beaten by her brother.
The Court observed:
“An entire reading of her testimony raises doubts regarding the prosecution case of enticing/kidnapping/abducting… She further admitted that immediately before going to Rampur, her brother had beaten her and out of desperation, she called the accused and asked him whether she could join him for 2 to 3 days.”
Given these admissions, the Court found the prosecution’s case for abduction and kidnapping “quite doubtful” and held that the trial court erred in convicting the appellant under Sections 363 and 366 IPC.
Regarding the rape conviction, the Court focused on the victim’s age. It relied on Section 94 of the Juvenile Justice Act, 2015, which prioritizes birth certificates from municipal authorities. The Court confirmed the victim’s date of birth as July 22, 1998, making her 15 years and 6 months old at the time of the incident.
Rejecting the defense’s argument regarding biological markers like menarche, the Court stated:
“the onset of menarche varies significantly from person to person… and, therefore, cannot be treated as a reliable or legally recognized method for age determination, especially when documentary evidence such as a birth certificate is available.”
On the issue of consent, the Court noted that while the victim’s version of “force” might be doubtful and the act appeared consensual, the law is clear:
“As stated by the accused, it appears to have been certainly a consensual one but since PW1 was a minor at the time of the offence, her consent is immaterial. Therefore, the offence of rape as defined under Section 375 is certainly made out.”
The Court also dismissed the claim of prejudice regarding the Section 313 examination, noting that the charges under the POCSO Act inherently put the accused on notice regarding the victim’s minority.
Decision
The High Court partially allowed the appeal. It set aside the conviction and sentence for the offences punishable under Sections 363 and 366 of the IPC. However, the Court confirmed the conviction and the 10-year rigorous imprisonment sentence for the offence punishable under Section 376(2)(n) of the IPC.
Case Details
Case Title: Suhail v. State
Case No.: CRL.A. 240/2017
Bench: Justice Chandrasekharan Sudha
Date: May 04, 2026
