Delhi High Court Sets Aside Child Rape Conviction Where Penetration Remains Unproved, Upholds Five Year POCSO Sentence for Aggravated Sexual Assault Against Minor Victim
Delhi High Court Distinguishes Sexual Touching From Penetration in Child Assault Case, Reduces Twenty Year POCSO Sentence to Five Years While Retaining All Other Convictions
Facts
In July 2021, the parents of a girl aged approximately five years and nine months alleged that their neighbour, Vishnu Prasad, sexually assaulted her on 21 July and threatened her against disclosure. She told her mother the following day; FIR No. 358/2021 was registered at Jaitpur Police Station on 23 July. The child’s statements under Sections 161 and 164 CrPC, her testimony and medical examination formed the prosecution case. The POCSO Special Court at Saket convicted the accused under Sections 376AB, 354A and 506 IPC and Sections 6 and 10 POCSO. On 15 February 2024 it imposed, inter alia, twenty years’ rigorous imprisonment under Section 6 and five years under Section 10, with concurrent sentences and victim compensation. He challenged both conviction and sentence.
Issues
Whether the evidence proved penetration for Section 376AB IPC and aggravated penetrative sexual assault under Sections 3(b), 5(m) and 6 POCSO, or established only aggravated non-penetrative sexual assault under Sections 7, 9(m) and 10. Further questions concerned the reliability of the child’s evidence, the evidentiary status of police/magisterial statements, Section 29 presumptions, overlapping punishment under Section 42 and consequential relief.
Petitioner’s Arguments
The appellant asserted material inconsistencies: the child and her parents differently described the location, and her versions alternated between insertion of a finger and touching of the private part. He contended that the trial judge wrongly treated an answer about where a nail touched as proof of penetration. No external injury was noted, internal examination was declined, and the forensic report did not connect him biologically to the alleged act. He also relied on the interval before FIR registration. Alternatively, he sought substitution of the aggravated-penetration finding with Section 10 POCSO, citing Ram Preet v. State.
Respondent’s Arguments
The State resisted the appeal, relying on the child victim’s in-court identification of the appellant, her account of sexual contact, the mother’s disclosure evidence, and supporting testimony and investigation records. The complainant’s birth certificate established that she was below twelve. According to the prosecution, the evidence proved the accused’s involvement and warranted affirmance of the trial court’s convictions under the IPC and POCSO Act, including the aggravated penetrative offence.
Analysis of the Law
Section 3(b) POCSO requires insertion, even to a slight extent, of an object or body part other than the penis into a child’s vagina, urethra or anus; an under-twelve victim attracts Section 5(m) and punishment under Section 6. Section 7 instead punishes sexual-intent physical contact without penetration; for a child below twelve it is aggravated under Section 9(m), punishable by Section 10. Proof of finger penetration is likewise essential to the charged Section 376AB IPC offence under Section 375(b). Statements under Sections 161 and 164 CrPC are not substantive proof. Section 29 POCSO’s rebuttable presumption requires foundational facts of the particular charged offence. Section 42 governs punishment where the same act attracts POCSO and listed IPC offences.
Precedent Analysis
Ram Preet v. State, 2024:DHC:9936-DB; Jeetu Ranjeet v. State (NCT of Delhi), 2025:DHC:8851; and Hamid Khan v. State (NCT of Delhi), 2026:DHC:78 distinguished proven sexual touching from unproved insertion and supported alteration from Section 6 to Section 10 POCSO. Phool Singh v. State of M.P., (2022) 2 SCC 74 recognises that trustworthy prosecutrix testimony can sustain conviction without independent corroboration, but each statutory ingredient must still be proved. Attorney General for India v. Satish, (2022) 5 SCC 545 stresses sexual intent and physical contact for Section 7. Deepak in JC v. State Govt. of NCT Delhi, 2026 INSC 1008 holds that Sections 29–30 presumptions are not automatic substitutes for foundational proof.
Court’s Reasoning
Justice Madhu Jain held that the child consistently identified the appellant and described him touching her private part with sexual intent, coupled with pain and a warning not to tell anyone. Her testimony adequately proved sexual contact. Yet her in-court description focused on touching by a nail; her answer ‘andar laga tha’ identified the site of contact but did not clearly prove insertion. The earlier Section 161 reference to insertion could not independently supply that element when substantive trial testimony did not. Neither the absence of visible injury nor refusal of internal examination disproved sexual assault, but the medical and forensic records also failed to establish penetration. Variations over the exact place and the short reporting interval did not undermine the core assault finding. Section 29 could not bridge the missing foundational fact of penetration.
Conclusion
The appeal was partly allowed. The Court set aside the Section 376AB IPC and Section 6 POCSO convictions and the twenty-year sentence, but upheld aggravated sexual assault under Section 9(m) punishable by Section 10: five years’ rigorous imprisonment and ₹10,000 fine, with default sentence. Convictions under Sections 354A and 506(1) IPC were maintained, subject to Section 42 POCSO on overlapping punishment. Substantive sentences remain concurrent, with Section 428 CrPC set-off. The Jail Superintendent must assess custody and remission, releasing the appellant only if the five-year term and applicable fine/default requirements are satisfied and he is not wanted in another case. Victim-compensation directions remain undisturbed.
Case: Vishnu Prasad v. State of NCT of Delhi
Court: High Court of Delhi, New Delhi
Case Number: CRL.A. 269/2024; CNR DLHC010154512024; arising from FIR 358/2021
Judge: Justice Madhu Jain
Date: 30 October 2026 (reserved 16 October 2026)
Result: Appeal partly allowed; penetrative-assault convictions set aside; five-year POCSO sentence upheld; conditional release direction.
