Case at a Glance
A trial court convicted the appellant of penetrative sexual assault on a child aged about five years and nine months and sentenced him to 20 years’ rigorous imprisonment under Section 6 of the POCSO Act. On appeal, Justice Madhu Jain held that the child’s court testimony reliably established sexual touching but did not prove penetration beyond reasonable doubt, and that earlier statements under Sections 161 and 164 CrPC are not substantive evidence. The conviction under Section 376AB IPC and Section 6 POCSO was set aside and replaced with conviction for aggravated sexual assault under Section 9(m) read with Section 10 POCSO, carrying five years’ rigorous imprisonment. The other convictions and the compensation directions were left in place.
The prosecution case was that in July 2021 the appellant sexually assaulted a girl aged about five years and nine months and threatened her; she told her mother the next day and an FIR followed. She was medically examined, her parents declined an internal examination, and her statement under Section 164 CrPC was recorded. Charges were framed under Sections 376AB, 354A and 506 IPC and Sections 6 and 10 of the POCSO Act. The prosecution examined seven witnesses and her age was proved through her birth certificate; the appellant denied the allegations and led no defence evidence.
On 7 November 2023 the Special Court (POCSO) convicted him, and on 15 February 2024 sentenced him to 20 years’ rigorous imprisonment and a fine under Section 6 POCSO, five years under Section 10 POCSO, three years under Section 354A IPC and one year under Section 506(1) IPC, concurrently, with Rs 2,00,000 compensation payable by him and Rs 8,50,000 to the child under the Delhi Victim Compensation Scheme 2018. In appeal, he pointed to variations in her accounts on the place of occurrence and on the act alleged, the absence of injury and of incriminating forensic material, and delay in the FIR, and argued in the alternative that at most aggravated sexual assault was made out.
The Key Question Before the Court
Where a child’s testimony in court establishes sexual touching but not penetration, can a conviction for penetrative sexual assault under Section 6 of the POCSO Act be sustained?
The Conviction Must Match the Offence Actually Proved
Justice Madhu Jain held that the child’s testimony was reliable on the core occurrence: “Her testimony sufficiently establishes the occurrence of sexual contact.” Discrepancies about the place and the delay in the FIR did not undermine that core account, and the Court noted that “The absence of injuries does not, by itself, exclude penetration”. Relying on Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, it accepted that the sole testimony of a reliable child witness can found a conviction, and on sexual intent it applied Attorney General for India v. Satish, (2022) 5 SCC 545.
However, the child’s answer in court, read in context, described where she was touched rather than proving insertion, and her earlier statements under Sections 161 and 164 CrPC are not substantive evidence. The medical evidence did not establish penetration. The Court therefore held that “The prosecution has failed to establish beyond reasonable doubt that the appellant inserted his finger”. Citing Deepak in JC v. State Govt. of NCT Delhi, (2026) 09 SC CK 2328, 2026 INSC 1008, it observed that the presumptions under Sections 29 and 30 POCSO are rebuttable and cannot be applied mechanically, and following Ram Preet v. State, (2024) 12 DEL CK 2257, 2024:DHC:9936-DB, Jeetu Ranjeet v. State (NCT of Delhi), (2025) 10 DEL CK 2275, 2025:DHC:8851, and Hamid Khan v. State (NCT of Delhi), (2026) 01 DEL CK 2363, 2026:DHC:78, held that “the conviction must correspond to the offence actually proved.”
What the Court Actually Held
- The conviction under Section 376AB IPC and Section 6 POCSO, and the 20-year sentence, were set aside because penetration was not proved beyond reasonable doubt.
- The appellant was convicted under Section 9(m) read with Section 10 POCSO (aggravated sexual assault) and sentenced to five years’ rigorous imprisonment with a Rs 10,000 fine.
- The convictions under Sections 354A and 506(1) IPC were maintained, with punishment governed by Section 42 POCSO.
- The Jail Superintendent was directed to compute the period undergone and release the appellant if the five-year sentence is complete; the compensation directions were not disturbed.
Why This Judgment Matters
- It underlines that statements under Sections 161 and 164 CrPC cannot fill gaps in a child’s substantive evidence in court.
- It shows appellate courts will alter, not simply acquit, where a lesser POCSO offence is clearly proved.
- It applies the Supreme Court’s 2026 caution that POCSO presumptions are rebuttable and not mechanical.
What Should Advocates Take Away From the Judgment?
For Prosecutors and Support Persons
- Ensure the child’s court testimony is recorded with care and clarity on the specific act, since earlier statements are not substantive evidence.
- A conviction for a lesser POCSO offence and the compensation can survive even where penetration is not proved.
For Defence Counsel
- Examine whether the evidence in court proves each ingredient of penetrative assault, not merely sexual contact.
- Seek alteration of the conviction to the offence actually proved, and computation of the sentence already undergone.
Key Takeaways
- Penetrative sexual assault must be proved beyond reasonable doubt from substantive evidence.
- A child’s reliable testimony can sustain a conviction for the offence it proves.
- Sections 29 and 30 POCSO presumptions are rebuttable.
- Victim compensation directions can stand even when the conviction is altered.
Frequently Asked Questions
Was the accused acquitted?
No. His conviction was altered from penetrative sexual assault (Section 6 POCSO) to aggravated sexual assault (Section 10 POCSO), and his sentence reduced from 20 years to five years’ rigorous imprisonment.
Why did the court say penetration was not proved?
Read in context, the child’s testimony in court described touching rather than insertion, earlier statements under Sections 161 and 164 CrPC are not substantive evidence, and the medical evidence did not establish penetration.
What happened to the compensation?
The compensation directions of the trial court, including Rs 8,50,000 under the Delhi Victim Compensation Scheme, were left undisturbed.
Conclusion
The Delhi High Court believed the child and upheld a POCSO conviction, but insisted that the offence and sentence match what the evidence in court actually proved. The ruling is a reminder that in serious sexual-offence trials the substantive testimony on each ingredient decides the outcome.
Practical takeaway: In POCSO trials, focus on clear court testimony on the specific act; earlier statements cannot supply a missing ingredient.
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