Gang Rape Conviction Sustainable Against a Single Accused under Section 376DA IPC: Delhi High Court affirms primacy of a consistent child-victim testimony and limits of DNA lapses

Introduction

The Division Bench of the Delhi High Court (Justice Prathiba M. Singh and Justice Rajneesh Kumar Gupta) in Praveen @ Lallu v. State NCT of Delhi (2025 DHC 7067-DB) dismissed a criminal appeal and affirmed the conviction and sentences imposed by the Special POCSO Court on the appellant for offences under Sections 363, 366, 376DA, 377 read with Section 34 of the Indian Penal Code, 1860, and Section 6 of the POCSO Act. The case concerned the kidnapping and sexual assault of a 14-year-old girl by the appellant and a co-accused (who subsequently absconded and was later reported deceased).

The judgment addresses recurring questions in sexual offences jurisprudence: the evidentiary value of the prosecutrix’s testimony; the operation of the statutory presumption under Section 29 of the POCSO Act; the role and limits of forensic evidence (DNA), especially when investigative lapses compromise sample integrity; the proving of age through school and birth records; the status of Test Identification Parade (TIP) vis-à-vis in-court identification; and whether a conviction for “gang rape” under Section 376DA can be sustained against a single accused when the other perpetrators evade trial.

Summary of the Judgment

• The Court upheld the trial court’s conviction of the appellant for kidnapping and gang rape of a minor (Section 376DA), unnatural offences (Section 377), and allied offences (Sections 363, 366, 34 IPC), in addition to aggravated penetrative sexual assault under Section 6 of the POCSO Act.
• Sentences imposed (to run concurrently) included life imprisonment under Section 376DA, 10 years’ rigorous imprisonment under Section 377, and lesser terms under Sections 363 and 366; benefit of set-off under Section 428 CrPC was granted.
• Age of the prosecutrix was proved through school records and birth certificate, corroborated by the principal’s testimony; the date of birth was unchallenged, establishing that she was 14 on the date of offence.
• The prosecutrix’s testimony, found unimpeachable and consistent across her police complaint, Section 164 CrPC statement, and deposition, was held sufficient to sustain conviction. Minor inconsistencies were held immaterial.
• Medical evidence (MLC) noted a fresh hymenal tear and anal dilation, corroborating sexual assault.
• Absence of semen and the failure to obtain male DNA profile from exhibits were attributed to a serious investigative lapse in sending samples to FSL after a 10-month delay, but this was held not fatal given cogent ocular testimony and corroborative medical evidence.
• On identity, the prosecutrix’s TIP and in-court identification were accepted; TIP was treated as corroborative while in-court identification was treated as substantive.
• Critically, the Court affirmed that a gang rape conviction may be sustained against one participant even if the co-accused remained absconding (or died), relying on existing precedent that gang rape hinges on proof that multiple persons committed rape acting in concert, not on the simultaneous trial or conviction of all participants.

Analysis

Precedents Cited and Their Influence

• Lalliram and Another v. State of Madhya Pradesh (2008): Cited for the proposition that injuries are not a sine qua non to establish rape and that absence of semen is not fatal. This supported the Court’s rejection of the defence’s plea that lack of forensic (semen/DNA) linkage exonerated the appellant, especially where investigative delay plausibly degraded samples.
• State of Himachal Pradesh v. Sanjay Kumar (2017/2018): Reaffirmed that a victim’s testimony in sexual offences is vital and may, by itself, sustain a conviction when it inspires confidence; insistence on corroboration “as a rule” is unwarranted and insulting to victims. The Court leaned on this to give primacy to the prosecutrix’s consistent narrative.
• Wahid Khan v. State of Madhya Pradesh (2010): Recognized the social realities that make false rape allegations by women and girls unlikely, reinforcing the credibility attributed to the prosecutrix absent compelling reasons to doubt her account.
• Kailash Lal Singh Khangar v. State of Madhya Pradesh (ILR 1996 MP 446): Employed to address whether a “gang rape” conviction can stand against a single accused when a co-accused absconds. The Court endorsed that where evidence establishes that multiple persons committed rape in concert, it qualifies as gang rape; it is not necessary that all be apprehended or tried for the surviving accused to be convicted of the aggravated offence.

Legal Reasoning

1) Age determination

The Bench affirmed the trial court’s reliance on the principal’s testimony and school records (admission register and certificates) read with the birth certificate to fix the prosecutrix’s date of birth as 11 February 2004. The defence did not challenge the authenticity or correctness of these records in cross-examination. This approach aligns with established practice that school records/birth certificates, duly proved and unchallenged, are reliable for age determination, especially in POCSO prosecutions.

2) Primacy of a consistent prosecutrix’s testimony

The prosecutrix’s version was steady across her complaint, Section 164 CrPC statement, and courtroom deposition. The Court treated her as a credible, cogent, and trustworthy witness. Minor discrepancies (e.g., precise food consumed, exact time stamps, and her difficulty in pinpointing the exact spot in a jungle at night) were treated as trivial—consistent with the jurisprudence that expects neither photographic memory nor perfect narration, more so from a child witness recounting a traumatic nocturnal assault in an isolated area.

3) Medical corroboration

The medical legal certificate recorded a fresh partial hymenal tear and anal dilation. The examining doctor refuted suggestions that infection could cause the noted redness or that hard stool could account for the anal injuries described. This medical evidence was treated as corroborative of penetrative sexual assault.

4) Forensic science (DNA) and investigative lapse

The defence contended that the absence of male DNA from the victim’s exhibits and the absence of semen negated the prosecution case. The Court, however, underscored:

• Scientific/DNA evidence is corroborative; its absence or failure is not dispositive where reliable ocular evidence exists.
• A serious lapse occurred: samples were dispatched to the FSL around ten months after seizure, creating a real possibility of degradation and failed profiling. Such lapses cannot redound to the benefit of the accused when the primary testimony is unimpeachable and supported by medical evidence.

The Court thus placed decisive weight on the prosecutrix’s testimony, consistent with Lalliram and settled law that lack of injuries or semen is not fatal to rape prosecutions.

5) Identity: TIP and in-court identification

The prosecutrix had known the appellant by a different name (“Sachin”), being a friend of her acquaintance Rohit. She identified the appellant in the TIP and in court. The Court reiterated that:

• TIP is not substantive evidence, but corroborative.
• In-court identification is substantive. Here, the defence did not even suggest that the accused had been shown to the witness before TIP. The identity case was therefore robust.

6) Place of occurrence

The defence emphasized the prosecutrix’s inability to identify the exact spot. Given the night-time jungle setting and the prosecutrix’s age, the Court considered this expectation unrealistic. The investigating officer prepared a site plan based on her description; precise geolocation was not treated as essential to the integrity of the prosecution case.

7) Gang rape conviction against a single accused

The appellant’s plea that gang rape could not be made out because the co-accused was not before the Court was rejected. Emphasizing the statutory architecture of Section 376D/376DA (which deems each participant to have committed gang rape where the rape is by a group or persons acting in furtherance of common intention), the Court held that the surviving accused can be convicted for gang rape if the evidence proves that at least two persons participated, even if one absconded or died. The Madhya Pradesh decision in Kailash Lal Singh Khangar was followed on this point.

8) Section 29 POCSO presumption and standard of proof

The trial court’s application of the presumption under Section 29 POCSO—once the foundational facts were established (minor’s age, sexual assault, consistent narrative, and identification)—was noted with approval. While the overarching burden on the prosecution to establish foundational facts remains, the presumption shifts the evidentiary burden to the accused to rebut on a preponderance of probabilities. The appellant neither demonstrated motive for false implication nor adduced defence evidence to dent the prosecutrix’s account.

9) Section 377 IPC charge alongside Section 376DA

The appellant was also convicted under Section 377 (unnatural offences). Post-2013 amendments, rape under Section 375 includes penile penetration of the anus; concurrently, Section 377 continues to criminalize non-consensual “carnal intercourse against the order of nature” and all sexual acts with minors. The Court did not specifically delve into potential overlap concerns; nonetheless, concurrent convictions and sentences were sustained, a course various courts have permitted when distinct facets of the assault are proved, with sentences running concurrently to avoid prejudice.

Impact and Forward-Looking Significance

• Gang rape prosecutions with absconding co-accused: The decision provides clear appellate-level affirmation that convictions under Section 376DA can be sustained against a single accused if evidence shows participation by more than one person acting in concert. This closes a recurrent defence argument premised on the absence of co-trials.
• POCSO prosecutions and testimonial centrality: The ruling reinforces that a consistent child-victim testimony, free from material contradictions and corroborated medically, can be dispositive. Prosecutors should meticulously build the testimonial record and protect child witnesses during cross-examination.
• Forensics as corroborative, not determinative: The Court’s discussion of investigative delay and DNA degradation will discourage overreliance on forensic outcomes while simultaneously pressing investigative agencies to adhere to strict chain-of-custody and prompt dispatch protocols. Courts may flag lapses but will not let them eclipse cogent ocular-medical evidence.
• Age proof simplified: Where school and birth records are proved and unchallenged, age determination is straightforward—a key pointer for trial strategy in POCSO cases.
• TIP best practices reaffirmed: TIP remains a useful corroborative tool; however, in-court identification retains primacy. Defence must meaningfully challenge TIP procedure to unsettle identity; mere name confusions (aliases) are insufficient if identification is firm.
• Sentencing consistency: The maintenance of concurrent sentences with life under Section 376DA underscores the gravity Parliament attaches to gang rape of minors. Trial courts are reminded to consider Section 428 CrPC set-off and concurrency explicitly.

Complex Concepts Simplified

• Section 376DA IPC (Gang rape of a girl under 16): Where a girl under 16 is raped by a group or by persons sharing a common intention, each participant is deemed guilty of gang rape with stringent punishment (life imprisonment, as imposed here). The State need not secure convictions against all participants to convict one; it must prove that more than one person acted in concert.
• Section 29 POCSO (Presumption of guilt): After the prosecution proves foundational facts (age, occurrence, and linkage of the accused), the law presumes the accused committed the offence unless he rebuts that presumption. The accused need not prove innocence beyond reasonable doubt; a credible alternative version on a preponderance of probabilities can suffice—but silence or bare denial rarely meets this threshold.
• Ocular vs. forensic evidence: “Ocular” means what witnesses saw or experienced. Indian courts treat credible ocular testimony, particularly of the victim, as primary. Forensic evidence (DNA/semen) is corroborative; its absence or failure—especially due to investigative delays—does not automatically exculpate the accused.
• Test Identification Parade (TIP): A pre-trial procedure to test a witness’s ability to correctly identify a suspect. TIP results are corroborative; the real, “substantive” identification happens in court during trial. A proper TIP can strengthen the prosecution’s case, especially where the accused was not previously known by name.
• Section 377 IPC post-Navtej: Consensual adult same-sex acts are decriminalized. But Section 377 still applies to non-consensual acts and all sexual acts with minors. It often co-exists with rape charges when the act alleged is penetrative anal or oral sex, particularly with a child or without consent.
• Section 428 CrPC (Set-off): Time already spent in custody during investigation/trial is set-off against the term of imprisonment upon conviction.

Key Observations and Practice Notes

• Courts will not discard a child’s credible testimony for minor inconsistencies, especially about peripheral details such as time, exact location, or what was eaten before the incident.
• Investigators must promptly send biological samples to FSL to avoid degradation; a documented chain-of-custody and adherence to timelines are critical. While lapses may not fatally undermine a strong case, they risk weakening prosecutions and invite judicial censure.
• Defence strategies that hinge only on missing forensic links, without undermining the prosecutrix’s credibility or the medical corroboration, are unlikely to succeed.
• Aliases or confusion in names do not negate identity when TIP and in-court identification are firm and untainted.
• Where offences occur at night in secluded areas, courts adjust evidentiary expectations around pinpointing the exact scene, particularly for child witnesses.

Conclusion

The Delhi High Court’s decision in Praveen @ Lallu v. State NCT of Delhi consolidates multiple strands of sexual offences jurisprudence into a coherent, victim-centric reaffirmation: a child-victim’s consistent and credible testimony, supported by medical evidence, is sufficient to sustain convictions; forensic lacunae born of investigative delay do not eclipse robust ocular narratives; and the aggravated charge of gang rape under Section 376DA is maintainable against a single accused even when a co-actor absconds or is unavailable for trial.

By validating the approach to age proof, clarifying the scope of TIP and in-court identification, explaining the proper use of the POCSO presumption, and addressing the forensic shortfall head-on, the judgment sets pragmatic guidance for investigators, prosecutors, and trial courts. Its most consequential doctrinal statement—that a gang rape conviction can stand against a single accused despite the absence of co-accused in the dock—will shape charging decisions and appellate review in group-assault cases, particularly involving minors, for years to come.