Delhi High Court Upholds 14-Year Sentence for Aggravated Penetrative Sexual Assault; Finds No Prejudice From Missing Doctor, Malkhana Witnesses or Unseized Clothes
Facts
The Delhi High Court considered an appeal filed by Rajesh Kumar Pandey, the sole accused in Sessions Case No. 9643/2016, challenging his conviction and sentence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 376(2)(i) IPC.
The prosecution alleged that on 7 November 2016 at about 6:00 PM, the appellant committed penetrative sexual assault upon PW1, a seven-year-old girl, inside a factory at West Sagarpur, New Delhi.
The child’s initial statement was that the accused took her inside the factory, removed her pants and placed his genital organ against her from behind. She stated that the accused thereafter urinated on her before she returned home and disclosed the incident to her mother.
In her statement under Section 164 CrPC, she again described the accused pressing his genital organ against her from behind. During trial, she specifically deposed that the appellant inserted his penis into her anus and thereafter urinated upon her. When recalled under Section 311 CrPC specifically to clarify whether there had been insertion or merely touching, she unequivocally stated that the accused had inserted it inside.
The medical examination recorded induration on the fourchette, freshly torn hymen, congestion of the hymen and tenderness in the vagina and cervix, though no injury was recorded in the anal region.
Forensic examination detected semen on the child’s underwear. DNA isolated from that exhibit contained alleles attributable to the accused’s blood sample.
The Trial Court convicted the appellant and sentenced him to 14 years’ rigorous imprisonment with ₹10,000 fine under Section 6 POCSO. In view of Section 42 POCSO, no separate sentence was imposed under Section 376(2)(i) IPC.
Issues
The principal issues before the High Court were:
- Whether the prosecution proved penetrative sexual assault beyond reasonable doubt.
- Whether expressions used by the child in her earliest statements suggested only touching rather than penetration.
- Whether the discrepancy between the child’s allegation of anal penetration and the MLC findings concerning the vaginal region created reasonable doubt.
- Whether non-examination of the doctor who actually conducted the medical examination rendered the MLC inadmissible or unreliable.
- Whether the alleged defects in the chain of custody of forensic exhibits undermined the DNA evidence.
- Whether non-seizure of all articles of clothing worn by the child affected the prosecution case.
- Whether the accused’s allegation of false implication arising from a tuition-fee or monetary dispute rebutted the statutory presumption under Section 29 POCSO.
- Whether any infirmity in the Trial Court’s judgment justified appellate interference.
Appellant’s Arguments
The appellant argued that PW1’s versions contained material improvements and contradictions.
The defence particularly relied upon the expressions “lagayi” and “laga diya” in her earlier statements, contending that these expressions suggested merely touching or placing the genital organ against the child rather than actual penetration. According to the defence, at best an offence of aggravated sexual assault under Section 10 POCSO was made out.
The appellant also argued that the doctor who actually examined the child was never produced for cross-examination, depriving the defence of the opportunity to question the medical history and findings.
A further challenge concerned the forensic exhibits. The defence submitted that the samples remained in the malkhana for approximately 16 days, while the malkhana register and personnel responsible for handling the exhibits were not proved or examined. This, according to the appellant, broke the chain of custody.
The appellant also pointed out that PW1’s mother stated that the child was wearing pants, underwear and a shirt, whereas only the underwear was seized and sent for forensic examination.
Finally, the accused claimed that the prosecution was motivated by unpaid tuition fees and other monetary dues allegedly owed by PW1’s family. He asserted that approximately ₹65,000 was outstanding and that he had therefore been falsely implicated.
Respondent’s Arguments
The State supported the Trial Court judgment.
It argued that PW1 had remained consistent regarding the essential fact of penetration across:
- the FIR;
- her Section 164 CrPC statement; and
- her testimony before the Trial Court.
The State further relied upon the medical findings and forensic material to corroborate her account.
According to the prosecution, the defence had failed to establish any contradiction of sufficient materiality to discredit the child witness or create reasonable doubt.
Analysis of the Law
Penetration “To Any Extent” Is Sufficient Under POCSO
The High Court examined Section 3 POCSO, which defines penetrative sexual assault to include penetration of the penis “to any extent” into the vagina, mouth, urethra or anus of a child.
Thus, complete penetration is not required. Proof of penetration to any extent satisfies the statutory ingredient.
Child’s Versions Were Consistent on Penetration
The Court carefully compared the FIR, Section 164 statement and trial testimony.
Although the precise language became more explicit during trial, the Court found the material substance consistent.
The child’s trial testimony specifically stated that the appellant inserted his penis into her anus.
When recalled by the Trial Court and asked whether the accused had merely touched her or had inserted his genital organ, the child answered:
“Daala tha” and, when asked whether it had been inserted inside, answered “Haan.”
The High Court therefore rejected the argument that the allegations established only touching.
Anatomical Discrepancy Did Not Defeat Penetration
The Court acknowledged an important discrepancy.
PW1 specifically described anal penetration, whereas the medical examination did not record injuries to the anal region.
Instead, the MLC recorded findings concerning the vaginal region, including a freshly torn hymen, congestion and induration.
The High Court held that this discrepancy required caution but was not fatal.
Both vaginal and anal penetration fall within the statutory definitions of rape and penetrative sexual assault.
Once the fact of penetration itself was consistently established, uncertainty as to the precise anatomical part did not eliminate the offence.
Seven-Year-Old Cannot Be Expected to Give Anatomical Precision
This is one of the important propositions from the judgment.
The Court emphasised that PW1 was merely seven years old at the time of the incident.
It would therefore be unrealistic to expect a child of such tender age to describe the precise anatomical details of sexual penetration or reliably differentiate between adjacent body parts.
Her evidence had to be assessed in light of her:
- age;
- comprehension;
- understanding; and
- ability to communicate the occurrence.
The Court held that her consistent evidence regarding the act of penetration was sufficient to establish the essential ingredient of penetrative sexual assault.
The conviction under Section 6 POCSO and Section 376(2) IPC was therefore sustainable.
MLC Admissible Despite Examining Doctor’s Absence
The defence argued that the MLC could not safely be relied upon because the doctor who had examined the child was not produced.
The High Court rejected the contention.
PW6 testified that the examining doctor had left the hospital and her whereabouts were unknown. PW6 was familiar with the doctor’s handwriting and signature and identified them on the MLC.
The Court applied Section 32(2) of the Evidence Act, dealing with statements made in the ordinary course of professional duty where the maker cannot be found or cannot reasonably be produced.
Since the MLC had been prepared by the doctor in discharge of official and professional duties, and her attendance could not reasonably be procured, it was relevant and admissible.
The document was also proved through Sections 47 and 67 of the Evidence Act by a witness acquainted with the examining doctor’s handwriting and signature.
Thus, non-examination of the original doctor did not render the medical report inadmissible.
Section 29 POCSO Presumption Not Rebutted
Once foundational facts attracting the POCSO offence were established, Section 29 POCSO raised a statutory presumption against the accused.
The appellant attempted to rebut it by alleging that the case arose from a monetary dispute concerning unpaid tuition fees.
The Court characterised that defence as bald and unsubstantiated.
The accused also suggested that he had previously found the seven-year-old child engaging in inappropriate sexual behaviour with another boy and had slapped her.
The Court found absolutely no material supporting this suggestion and considered it highly improbable in light of the child’s age.
Accordingly, the defence failed to rebut the Section 29 presumption.
Chain of Custody Challenge Rejected
The appellant relied upon non-production of the malkhana register and failure to examine every officer who handled the forensic exhibits.
The High Court held that mere non-production of every link witness is insufficient to discard forensic evidence unless there is some specific material indicating tampering, contamination or an actual break in custody.
The defence had neither shown actual prejudice nor placed any concrete material demonstrating tampering.
Further, when the forensic expert and investigating officer were cross-examined, no questions were put suggesting contamination, fabrication or deterioration of the samples.
The challenge therefore failed.
DNA Evidence Independently Supported the Prosecution
The forensic report was particularly significant.
Semen was found on the child’s underwear.
The forensic expert obtained male DNA profiles from:
- the child’s underwear; and
- the accused’s blood sample.
The alleles from the accused’s sample were accounted for in those obtained from the child’s underwear.
The High Court therefore held that the forensic evidence independently lent support to the prosecution case regarding ejaculation following penetrative assault.
Non-Seizure of Every Article of Clothing Not Fatal
The defence pointed out that although PW1’s mother said the child had been wearing a T-shirt, pants and underwear, only the underwear was seized.
The High Court held that there is no absolute rule requiring seizure of every article worn by a sexual assault victim.
The relevant inquiry is whether non-seizure causes prejudice or creates reasonable doubt.
Here, the appellant could demonstrate neither.
More importantly, the seized underwear itself yielded significant forensic evidence linking the accused to the child.
Accordingly, non-seizure of the pants and T-shirt was immaterial.
Section 232 CrPC Irregularity Did Not Vitiate Trial
The High Court also noticed that after recording the accused’s Section 313 statement, the Trial Court had apparently not conducted the hearing contemplated under Section 232 CrPC.
However, the Court held that non-compliance with Section 232 does not automatically invalidate the proceedings unless the accused demonstrates serious and substantial prejudice.
No such prejudice was alleged or established in the present case.
Precedent Analysis
Moidu K. v. State of Kerala
The Court relied upon this decision for the proposition that failure to comply with Section 232 CrPC does not ipso facto vitiate a criminal trial.
The accused must demonstrate that the procedural omission caused serious or substantial prejudice.
Prithi Chand v. State of Himachal Pradesh
The Supreme Court decision was relied upon to explain Section 32 of the Evidence Act.
A written statement or professional record prepared by a person whose attendance cannot reasonably be procured may become relevant and admissible where it was made in discharge of professional duty.
Rambalak Singh v. State of Bihar
This authority supported the proposition that where the doctor who prepared a medical or post-mortem record is unavailable, the document may still be admitted if the handwriting and signature of its author are properly proved.
Kochu & Ors. v. State of Kerala
The Court referred to this authority for the distinction between ordinary proof of medical records and admissibility under Section 32.
Where the doctor is unavailable in circumstances contemplated by Section 32, the medical record itself may become relevant, though the weight to be attached depends upon the circumstances of the case.
Court’s Reasoning
The High Court considered the child’s testimony to be the central piece of evidence.
It found that, notwithstanding variation in terminology, she had consistently described the appellant engaging in a penetrative sexual act and thereafter urinating or ejaculating upon her.
Her young age explained why she might not accurately distinguish between anal and vaginal anatomy.
The medical findings objectively demonstrated recent genital injury, while the DNA evidence linked the accused to semen found on her underwear.
The procedural objections concerning the unavailable examining doctor, malkhana records and non-seizure of every garment did not create reasonable doubt because:
- the MLC had been lawfully proved;
- no actual sample tampering was demonstrated;
- the forensic exhibits reached the laboratory sealed;
- the accused’s DNA was identified on the child’s underwear; and
- no prejudice arose from the missing articles.
The false-implication theory was unsupported and failed to rebut the statutory POCSO presumption.
Accordingly, the High Court found no infirmity in the Trial Court’s appreciation of evidence.
Conclusion
The Delhi High Court held that the prosecution had successfully established aggravated penetrative sexual assault upon the seven-year-old victim.
The Court found that the child’s consistent evidence regarding penetration, the medical findings and the DNA evidence together provided a legally sufficient basis for conviction.
It rejected the appellant’s challenges concerning:
- alleged contradictions in the victim’s testimony;
- absence of anal injuries;
- non-examination of the original examining doctor;
- alleged defects in chain of custody;
- non-seizure of all clothes; and
- the alleged tuition-fee dispute.
Finding no infirmity warranting interference, the High Court dismissed the criminal appeal.
The Trial Court’s conviction under Section 6 POCSO and Section 376(2)(i) IPC and the sentence of 14 years’ rigorous imprisonment with ₹10,000 fine under Section 6 POCSO therefore remained intact.
Case Details
Case: Rajesh Kumar Pandey v. State (NCT of Delhi)
Court: Delhi High Court
Case Number: CRL.A. 1697/2025; CNR No. DLHC011021232025
Judge: Justice Chandrasekharan Sudha
Date: 14 August 2026
Result: Appeal dismissed; conviction under Section 6 POCSO and Section 376(2)(i) IPC upheld, with 14-year rigorous imprisonment and ₹10,000 fine remaining undisturbed.
