The Delhi High Court has set aside a conviction for aggravated penetrative sexual assault under Section 6 of the POCSO Act, holding that a child’s answer that the accused’s nail touched her “inside” did not establish penetration beyond reasonable doubt. Justice Madhu Jain upheld the conviction for aggravated sexual assault under Section 10 of the Act. The 20-year sentence was set aside, and the five-year sentence was maintained.
Background
The prosecution case was that the appellant, a neighbour, sexually assaulted a girl aged about five years and nine months on July 21, 2021. The child disclosed the incident to her mother the next day, and an FIR was registered on July 23, 2021. Her parents declined consent for an internal medical examination at AIIMS.
In November 2023, the Special Court (POCSO), South-East District, Saket, convicted the appellant under Sections 376AB, 354A and 506 of the IPC and Sections 6 and 10 of the POCSO Act. He was sentenced to 20 years’ rigorous imprisonment under Section 6, with concurrent sentences on the other counts.
Arguments
Advocate Harsh Prabhakar, along with Advocates Dhruv Chaudhary, Sakshi Gupta, Shubham Sourav and Vijit Singh, appeared for the appellant. The appellant’s counsel argued that the child’s statements varied on the place of occurrence and the nature of the act. They pointed out that she spoke of insertion of a finger in her Section 161 CrPC statement but of touching in her Section 164 statement and her examination-in-chief. They further submitted that the medical and forensic evidence did not support penetration, and that, at best, the act amounted to aggravated sexual assault under Sections 9 and 10. Reliance was placed on the Division Bench ruling in Ram Preet v. State.
Additional Public Prosecutor Meenakshi Dahiya, along with Advocates Vanshika Singh and Apoorva Khosla, appeared for the State. The State submitted that the guilt of the appellant had been proved beyond reasonable doubt and that the trial court had rightly convicted him. Advocates Astha (DHCLSC) and Megha Singh appeared for the child.
Court’s Findings
The Court held that the child had clearly identified the appellant and that her testimony sufficiently established sexual contact. On penetration, however, it found that her answer “andar laga tha”, given to the trial court’s question on where the nail had touched her, was in the context of identifying that spot. The Court held: “It does not clearly establish that the appellant inserted his finger or nail into her vagina or urethra.”
It added that statements under Sections 161 and 164 CrPC are not substantive evidence, and that the allegation of insertion in the earlier statement could not by itself prove penetration.
The Court observed: “This Court is conscious of the tender age of the prosecutrix and the fact that a child cannot be expected to describe an incident of sexual assault with anatomical precision. Nevertheless, the essential ingredient of penetration must emerge from the evidence with sufficient certainty.”
Relying on Ram Preet, Jeetu Ranjeet and Hamid Khan, the Court held that “where the evidence proves sexual touching but fails to establish penetration, the conviction must correspond to the offence actually proved.”
On the medical evidence, the Court clarified: “The absence of injuries does not, by itself, exclude penetration, nor does the absence of an internal examination justify an adverse inference against the prosecutrix or her parents.” However, the medical evidence did not establish insertion either.
Citing Deepak in JC v. State Govt. of NCT Delhi, the Court noted that the POCSO presumptions are not absolute and that the prosecution must first establish the foundational facts. It rejected the defence pleas on the place of occurrence and the delay in lodging the FIR, holding that neither discredited the child’s account of sexual touching.
Outcome
The appeal was partly allowed. The appellant was acquitted under Section 376AB IPC and Section 6 of the POCSO Act, and the 20-year sentence was set aside. His conviction under Section 9(m), punishable under Section 10, was upheld with five years’ rigorous imprisonment and a fine of ₹10,000. The convictions under Sections 354A and 506(1) IPC were maintained, subject to Section 42 of the POCSO Act.
The Jail Superintendent was directed to compute the period already undergone and release the appellant forthwith if he has completed the five-year sentence. The compensation awarded to the child was left undisturbed.
Case Title: Vishnu Prasad v. State of NCT of Delhi
Case No.: CRL.A. 269/2024
Bench: Justice Madhu Jain
Date: October 30, 2026
