Delhi High Court - Orders
State vs Mahesh Sahai Jain on 5 February, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 571/2019
STATE .....Appellant
Through: Mr. Ritesh Kumar Bahri, APP with Dr.
R S Gupta, Adv. for the State
SI P Buno P.S. Madhu Vihar.
versus
MAHESH SAHAI JAIN .....Respondent
Through: Mr. Shashank Kumar, Mr. Sanjaya
Sharma & Mr. Anant Sharma, Advs.
Respondent in person.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
ORDER
% 05.02.2026
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed by the State challenging the impugned judgment dated 25th July, 2018 and order on sentence dated 26th July, 2018, passed by the Additional Sessions Judge / Special Judge (POCSO), Shahadra District, Karkardooma Courts, Delhi in Sessions Case No. 589/16 arising out of FIR No. 405/2014 registered at P.S. Madhu Vihar for offences punishable under Section 376/323 of the Indian Penal Code, 1860.
3. Vide the impugned judgement the Respondent has been convicted for offences punishable under Section 354 of IPC and Section 8 of the POCSO Act. Further, the Respondent has been acquitted of charges framed under Sections 376/323 of IPC and Section 6 of POCSO Act. Accordingly, vide the CRL.A. 571/2019 Page 1 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 impugned order on sentence the Respondent has been sentenced to undergo rigorous imprisonment for a period of four years and 2 months along with fine of Rs. 5,000/-. However, considering that the Respondent had already undergone the said period of incarceration during the pendency of the trial, the Trial Court directed him to be released forthwith.
4. The State has filed the present appeal challenging the impugned judgement and impugned order on sentence, inter alia, on the ground that the ld. ASJ has overlooked the MLC of the survivor and failed to appreciate certain other evidence proving the prosecution's case. Factual Background
5. The relevant facts of the case as per the Prosecution, are that on 5th April, 2014 at about 08:00 P.M., when two constables who were on beat patrol had reached the Shani Bazar park, near the CBSE Building, they observed one child sitting in the said park. Upon approaching the said child who was the brother of the survivor, he directed the beat constables towards the Accused. Upon the constables then going towards the Respondent they saw that he was lying upon the survivor. Upon seeing the said constables the Respondent started to stand up. The beat constables then apprehended the Respondent and brought both the children to the police station at Madhu Vihar.
6. The two children were siblings. The mother of the children was called to the police station and in her presence and a representative of an NGO, the statement of the survivor was recorded. On the basis of the said statement the FIR No. 405/2014 was registered. The survivor was, thereafter, medically examined in a hospital. The Respondent was also examined, samples were collected, and he was then arrested.
CRL.A. 571/2019 Page 2 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48
7. The statements of the survivor and her brother under Section 164 of the Code of Criminal Procedure, 1973 were also recorded. Considering that there was no document to determine the age of the survivor, the bone ossification test was conducted, as per which the age of the survivor was between 10 to 11 years.
8. As per the investigation conducted by the concerned I.O. the chargesheet as also the supplementary chargesheet was filed before the Trial Court. The FSL report was also filed as per which semen was detected on the underwear of the Respondent but the none was found on the person of the survivor.
9. Thereafter, charges were framed against the Respondent on 5th June, 2014 in the following terms:
"That on 05.04.2014 at about 08.00 p.m., at Shani Bazar Park, near CBSE Building, within the jurisdiction of PS Madhu Vihar, Delhi, you committed rape upon the minor prosecutrix d/o Shiv Kumar without her consent and also gave beatings to her and thereby committed offences punishable u/s 376/323IPC and within my cognizance.
Secondly, on above said dates, times and place, you committed aggravated penetrative sexual assault upon the aforesaid minor prosecutrix (aged about 8 years) and thereby committed offence punishable u/s 6 POCSO Act and within my cognizance."
10. In support of its case the prosecution had examined 9 witnesses, of which the following are the material witnesses:
CRL.A. 571/2019 Page 3 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 a. PW-1: Survivor;
b. PW-2: Brother of the Survivor;
c. PW-4: Mother of the Survivor;
d. PW-5: Ct. Vikram (Beat Constable on duty at the time of the
incident)
e. PW-8: Ct. Dharambir (Beat Constable on duty at the time of the
incident)
11. The Respondent did not lead any evidence in his defence. However, in his statement under Section 313 of the Code of Criminal Procedure, 1973 the Respondent had denied the case of the prosecution and claimed innocence.
He further stated that the survivor had been tutored by her mother for testifying against him.
12. The Trial Court considered the evidence as also the submissions of the parties and vide the impugned judgement convicted the Respondent only for offences punishable under Section 354 of IPC and Section 8 of the POCSO Act, while acquitting him of the remaining charges. Findings of the Trial Court
13. The Trial Court had considered the testimonies presented by the prosecution in three sets: (i) that of the Survivor and her brother; (ii) that of the two beat constables who are the eye-witnesses to the incident; and (iii) the mother of the Survivor along with other police officials.
14. The Trial Court was of the view that insofar as the testimony of the Survivor is concerned, the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 is unblemished and trustworthy. The fact that the Respondent took both the Survivor and her brother to the site of the incident i.e., the park, was corroborated from the testimony of the brother. However, CRL.A. 571/2019 Page 4 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 the testimony in respect of what occurred after the Respondent took the Survivor away from his brother is not believed by the Trial Court. The testimony of the brother of the Survivor as also the two beat constables raised various inconsistencies in the statement of the Survivor.
15. Whereas the Survivor had stated that the Respondent had committed penetrative sexual assault upon her after taking her away, her brother had in fact stated that nothing wrong was done by the Respondent with his sister. Further, the Trial Court has considered the FSL report as per which no semen traces were found from the Survivor, and the same were present only on the underwear of the Respondent. In view of the same, the Trial Court held that the prosecution had failed to prove the case of penetrative sexual assault. However, in view of the facts proved, the Respondent had also failed to discharge the reverse burden of proof under the POCSO Act for conviction under Section 8 of the POCSO Act. The relevant findings of the Trial Court are as under:
"44) As regards inconsistencies between victim and her mother that accused had never purchased anything from the shop and the accused had started coming to their shop 5/6 days prior to the incident.
He used to asked them for samosa and tea and her mother refused. These inconsistencies are not very material in view of the fact that they are consistent that accused used to come to the temple. Further the mother of the victim had stated that accused had never teased her victim daughter before the incident whereas the child also not stated in her examination-in-chief that accused had touched her but when she was put leading question she admitted that accused had touched her breast on earlier occasions also however, again when she was cross-examined by Ld. Defence counsel she CRL.A. 571/2019 Page 5 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 has stated that accused had never touched her before the incident. The same can also be ignored. Therefore, mother and victim, both are consistent that accused had never touched victim prior to the incident.
45) Victim and her mother had stated that they had never gone to the spot after the incident. Whereas, IO PW-9 stated that site plan was prepared at the instance of victim when her mother also accompanied them. Further IO states that she has prepared the site plan only of the spot and not of the bench. The photographs which was proved by the victim is of the spot where corner of the park was shown having grass. In view of specific statement of mother and victim child that they had never visited the spot after the incident, the version of IO to the effect that site plan was prepared at the instance of victim cannot be accepted.
46) The other material inconsistencies pointed out are that both constables are consistent that victim reached at the police station alongwith with them at about 8:00 - 9:00 p.m. Victim also claimed that she reached at 8:00-9:00 p.m. IO stated that victim and her mother came almost at the same time when both constables came. Mother whereas stated that she came to know from someone that incident had taken place with her daughter and she went to the police station herself alone. Mother claimed to have reached in PS at 1:00 a.m. (night). On the other hand, PW-8 Ct. Dharambir stated that IO had asked him to inform mother of the victim and when he was going, on the way, he met with mother of the victim. The FIR was registered at 12:20 midnight. The time of recording of the rukka is 12:15 a.m. (night) on 06.04.2014 and the complaint of the victim is bearing signature of CRL.A. 571/2019 Page 6 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 mother of the victim, meaning thereby the same was recorded in her presence. Victim also claims that same was recorded after her mother had arrived. Therefore there is glaring inconsistencies as to how mother of the victim came to the police station and if so, at what time. But the question would be whether it goes to the root of the matter ? Arrival of mother alongwith child or child was brought by both constables and at what time statement of the victim was recorded, does not go to the root of the matter as core evidence is that of the victim and her brother alongwith constables.
47) Coming to the testimony of the victim. She claims that she was told by her mother and Anuradha aunty as to what has to be stated before the magistrate. Therefore version of the victim is to be carefully scrutinized before relying upon her. Victim in her initial statement made to police had stated about penetrative sexual assault committed by the accused whereas when her statement was recorded under S. 164 Cr.PC by Ld. Metropolitan Magistrate she stated about touching of the vagina with the penis. Therefore in case victim child was tutored by the IO and her mother, she would have not stated that she was only touched but she would have stated regarding penetrative sexual assault. When question is put to children of tender age in cross-examination in leading form, they tend to answer in affirmative. The child victim was put leading questions by the prosecutor and she stated 'Yes' to the questions. Hence, it cannot be said that the statement u/s 164 Cr.PC of victim was result of tutoring. Therefore statement of the victim u/s 164 Cr.PC which was recorded at the earliest point of time is unblemished, cogent and trustworthy.
CRL.A. 571/2019 Page 7 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48
48) Brother of the victim is consistent with the victim that they had been taken by the accused inside the park and brother of the victim was made to sit on the bench in the park. Both constables are also consistent that they saw the child sitting on the bench in the park and when they went inside they found accused and victim inside the park. Question to be answered is whether there are some inconsistencies as brother says that when he saw the victim with the accused alongwith police, they were wearing pajami and pant respectively. Constable claims that jip of pant of accused was open and pajami of the victim was put on in their presence. Constable claims when they saw accused lying on the victim and accused stood up on seeing them whereas brother of the victim claims that he had not seen accused doing any wrong act with the victim.
49) Now coming to the testimony of victim. She has stated that accused removed her panty and then took out his susu wali jagah and put it inside her susu (penis in vagina). Victim in her cross- examination has stated that police saw accused was also sitting with her. In her statement under S. 164 Cr.PC she has stated that accused took her to bushes and then he removed his pant and also her pajami and thereafter made her to lie on the ground and lie down on her and touched his susu in her susu and when she started shouting, he slapped her and when she tried to run away from there, accused held her hand and pulled. In the meantime police came. The child / victim from the spot was taken directly to the police station from where she was taken for her medical examination and there was no gap in time where the important evidence would have lost like semen staining. Human semen was only detected on the underwear CRL.A. 571/2019 Page 8 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 of the accused but no semen was detected on any of the exhibits of the victim including microslide from vagina secretion. In view of the inconsistency in the statement of witnesses as to what actually happened as police witnesses states that jip of pant of accused was open and pajami of the child was open whereas brother of the victim has stated that they were wearing clothes and also victim states that police came accused was sitting with them which is also inconsistent with the version of the police which cannot be relied upon to the fact that they saw accused lying on the victim.
50) Both victim and her brother are consistent that they were taken by the accused to park by the accused and her brother was made to sit on the bench and victim was taken behind the bushes and further finds corroboration from the constables who saw victim, accused and brother of the victim inside the park. The portion of testimony of victim which finds corroboration is worth to be relied upon. The victim has stated about the penetrative sexual assault with minor inconsistencies at different places but there is no corroboration to her version. Statement recorded u/s 164 Cr.PC corroborates the victim regarding touching vagina with penis but without penetration.
51) Further, the burden is on the accused as to how and why he had taken the child inside the bushes and was found with the child in the bushes. The accused has failed to discharge the burden shifted upon him under POCSO Act.
Therefore the version of victim stands established.
52) Victim had stated in her statement u/s 164 CRL.A. 571/2019 Page 9 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 Cr.PC that he has touched his susu with her susu but no inference can be drawn that there is penetration as no semen and no fresh hymen torn was found. Therefore it could not be proved with cogent and consistent evidence that accused has committed penetrative sexual assault. However, the prosecution has succeeded in proving offences punishable S. 354 IPC and 8 POCSO Act against accused.
53) As per discussion above, I am of the opinion that prosecution has failed to prove offences punishable u/s 376/323 IPC and 6 POCSO Act, however, prosecution has succeeded in proving offences punishable under S. 354 IPC and 8 POCSO Act against accused beyond reasonable doubt. Accordingly accused is convicted for offences punishable u/s 354 IPG and 8 POCSO Act."
16. Thus, as can be seen from the above, the Trial Court held that the prosecution had failed to prove offences under Sections 376/323 of IPC and Section 6 of POCSO Act, but convicted the Respondent u/s 354 of IPC and Section 8 of POCSO Act. Further, the Respondent was sentenced to undergo rigorous imprisonment for a period of 4 years and 2 months in the following terms:
"11) Keeping in view the totality of facts and circumstances of the case, the convict Mahesh Sahai Jain is sentenced to undergo rigorous imprisonment (RI) for a period of 04 years and 02 months, which he has already undergone, and fine of Rs.5,000/-. In default of payment of fine, he shall further undergo simple imprisonment (SI) for a period of 10 days. Fine, if recovered, shall be paid to the victim. Fine paid. In view of the fact that CRL.A. 571/2019 Page 10 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 convict has already undergone the period of sentence, he be released forthwith if not required in any other case."
17. The Trial Court had also awarded Rs. 2 lakhs as compensation to the Survivor to be paid by the District Legal Services Authority, Shahdara District, Karkardooma Courts, Delhi, since the Respondent was incapable of paying the said amount. The relevant portion of the order on sentence reads as under:
"17) Now coming to the circumstance of accused. It is submitted by Ld. Counsel that accused belongs to poor family and he remained in judicial custody after the incident. As per evidence on record, the accused was doing private job and was working as helper. Keeping view of economic status of accused, I am of the opinion that is is not possible for him to pay amount of compensation to the victim.
18) Since compensation to the victim, cannot be received from convict, the compensation of Rs. 2/- lacs shall be paid to the victim under S. 357 (A) CrPC by the DLSA Shahdara District, KKD Courts, Delhi under Delhi Victim Compensation Scheme, 2015."
Submissions of the Parties
18. Mr. Ritesh Kumar Bahri, ld. APP for the State has submitted that the evidence of the Survivor is of sterling quality and in fact the Trial Court ought to have believed her entire testimony. It is his further submission that the Survivor being a minor the highest punishment should have been awarded to the Respondent.
19. On the other hand, ld. Counsel appearing for the Respondent has pointed out that there were several inconsistencies specially in the evidence CRL.A. 571/2019 Page 11 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 of the brother of the Survivor, who had accompanied her with the Respondent and was waiting in the same park. He clearly stated that he had found the Survivor and the Respondent in a proper clothed condition and had not seen anything else.
20. Moreover, it is submitted that the mother of the Survivor has also not supported the case of the prosecution. He also submitted that the Respondent is suffering from various issues affecting his mental health due to which he is currently unemployed. On the basis of the same, it is submitted that the sentence does not deserve to be enhanced and ought to be restricted to the sentence as per the Trial Court.
Analysis & Findings
21. The Court has considered the matter, perused the record and heard the parties. The Survivor in her evidence, states as under:-
"Q. Whether you know accused prior to incident? Ans: Yes. Accused used to come to temple and purchased garlands from my mother's shop. He used to give money after purchasing the flowers only. He did not give me any money in addition to payment of flowers.
Q.What happened with you and on what day? Ans. On the date, month or year I do not remember but the time was at about 6 pm in a park near Shani Bazaar. My brother Raju was present with me in Park near Shani Bazaar. Mahesh accused made my brother sit at a distance in the park. Accused took me to a gali inside the park. The accused removed my panty & then took out his susu wali jagah and put it inside my susu. There was no person present in that gali.
Q- Did you raise any noise?CRL.A. 571/2019 Page 12 of 16
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 Ans. The accused did not allow me to raise noise as he had slapped me.
Q- Did the accused leave you after doing the wrong act?
Ans. The accused kept lying out with me for 15-20 minutes as I was on his laps. I saw two police persons who were roaming in the park and I immediately ran towards the police."
22. Whereas the brother of the Survivor - PW-2 stated as under:-
"I do not remember the date, month, year and time. At this stage, accused is shown to the witness. Witness correctly identifies the accused to be the same person who had taken my sister inside the park near Shani Bazar. He made me sit on the table in the park and then took my sister in the bushes. I did not see anything wrong happened with my sister as he had taken my sister inside the bushes. My sister did not tell me anything. Two police persons came near my table and asked me as to why I was sitting there. I told them that accused had taken my sister inside the bushes. Police persons took me inside those bushes. We found the accused as well as my sister. Police starting beating him. Both accused as well as my sister were wearing clothes and I did not see anything else. I was produced before the magistrate where my statement u/s 164 Cr.P.C was recorded. I cannot identify my thumb impression on statement mark PW-2/A. I had told the magistrate what I had told today. At this stage, Ld. Addl.PP for the state wants to put leading question from the witness. Heard. Allowed.
It is correct that my sister had told the police that accused was misbehaving (badtamiji) with my sister."CRL.A. 571/2019 Page 13 of 16
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48
23. A conjoint reading of the above two testimonies itself shows that there is some inconsistency and contradiction in the events as narrated by the Survivor only to the extent of the Respondent committing penetrative sexual assault on the Survivor.
24. This is further supported by the medical examination of the Survivor, whose clothes had also been collected and examined. The MLC record is as under:-
"Alleged H/o sexual assault by some person (whom shivani called uncle) at around 8 pm in Shani Park. According to victim she was there in a temple when that person called her and took her and her brother (raju 7 years old) with him telling he will buy some clothes for them. Then he took them to park where he removed her clothes and inserted his organ forcefully into her vagina. He CRL.A. 571/2019 Page 14 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48 also slapped her. Her brother was made to sit outside the park."
"No external marks of injury"
25. However, the FSL report is very categorical and the result of the analysis is as under: -
"RESULT OF ANALYSIS
1. Blood was detected on exhibits '1o1', '1o2', '1p1' & '3'.
2. Human semen was detected on exhibit '4'.
3. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l', '1m1', '1m2', '1m3', '1n1', '1n2', '1n3', '2a' & '2b'.
4. Due to non availability of semen on victim's sample, no DNA examination was conducted."
26. It is clear from the above report, that no semen was found on the Survivor's samples, and that it was only found on the Respondent's underwear.
27. Looking at overall facts of this case, this Court is of the opinion that after seeing the FSL report and also the evidence of the brother of Survivor, that the conviction under Section 354 of IPC and Section 8 of POCSO Act does not deserve to be disturbed. Further, the Court does not find any ground for interfering with the acquittal of the Respondent under Section 376/323 and Section 6 of POCSO Act.
28. Accordingly, the Trial Court judgment is upheld and the Appeal is disposed of.
29. The Court has taken notice of the compensation of Rs. 2 Lakhs awarded by the Trial Court and the same is also upheld.
30. At this stage, Mr. Bahri, ld. APP informs the Court that the Survivor is not traceable despite fresh notice having been issued on the last date.
CRL.A. 571/2019 Page 15 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48
31. Let the Survivor be traced through the concerned I.O.
32. The Secretary DLSA, Shahdara District, Karkardooma Courts, Delhi shall also get in touch with the Survivor and place on record a status report in respect of the compensation.
33. Let a copy of this order be communicated to Secretary, DLSA, Shahdara District, Karkardooma Courts, Delhi for necessary information and compliance.
34. List for compliance report on the issue of compensation on 11th March, 2026.
PRATHIBA M. SINGH, J MADHU JAIN, J FEBRUARY 5, 2026/prg/msh (corrected and released on 10th February, 2026) CRL.A. 571/2019 Page 16 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/02/2026 at 20:31:48