The Delhi High Court has modified the conviction of a medical practitioner accused of sexually assaulting a 9-year-old girl, ruling that the act of rubbing one’s private parts against a child without penetration constitutes “Aggravated Sexual Assault” under Section 9(m) of the POCSO Act, and not “Aggravated Penetrative Sexual Assault” under Section 6.
Justice Chandrasekharan Sudha partly allowed the appeal filed by the accused, Madhu Shudhan Dutto, reducing his sentence from 10 years to 7 years of rigorous imprisonment, while observing that the accused, being a doctor, was in a “position of authority and trust” which he misused.
The appeal challenged the judgment dated January 17, 2025, by the Special Court (POCSO Act), Saket Courts, which had convicted the appellant under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Section 342 of the Indian Penal Code (IPC). The Trial Court had sentenced him to 10 years of rigorous imprisonment for the POCSO offence.
The High Court, after re-appreciating the evidence, held that the ingredients for “penetrative sexual assault” under Section 3 of the POCSO Act were not made out. Consequently, the conviction was modified to Section 9(m) of the POCSO Act, and the sentence was altered to 7 years.
Background of the Case
The prosecution’s case was that on June 28, 2016, the victim, a 9-year-old girl, went to the clinic of the appellant (referred to as “Bengali Doctor”) to fetch medicine for her younger sister. The mother of the victim (PW7) followed her shortly after. Upon reaching the clinic, PW7 found the shutter half-open and the curtains drawn.
According to the prosecution, PW7 entered the clinic and witnessed the accused lying on top of her daughter with his undergarment pulled down. The victim later stated that the accused had removed her clothes and rubbed his body against hers. Based on the mother’s statement (FIS), an FIR was registered under Sections 342 and 376 IPC and Section 6 of the POCSO Act.
The Trial Court convicted the appellant, leading to the present appeal.
Arguments of the Parties
The Appellant’s Contentions: The counsel for the appellant argued that the evidence on record was unsatisfactory and contained several contradictions. A primary contention was regarding the Medico-Legal Certificate (MLC). The defense argued that the doctor who examined the victim was never examined before the Trial Court, and thus, the MLC (Ext. PW5/B) was not proved in accordance with the law.
Furthermore, the defense argued that even if the prosecution’s case were accepted, the offence would at best fall under Section 7 of the POCSO Act (Sexual Assault) punishable under Section 10, as there was no conclusive proof of penetration required for a conviction under Section 6.
The Prosecution’s Submissions: The Additional Public Prosecutor (APP) for the State argued that the testimony of the victim (PW1) was corroborated by her mother (PW7) and independent neighbours (PW3 and PW4). The State contended that the witnesses were consistent and credible. Regarding the MLC, the State submitted that the original doctor was unavailable, and his signature was validly identified by another witness (PW5).
Court’s Analysis and Observations
1. Admissibility of MLC without Examining the Author The Court addressed the objection regarding the non-examination of Dr. M. Sandeep, who prepared the MLC. The prosecution examined PW5, a record clerk/official from AIIMS, who deposed that Dr. Sandeep had left the hospital and his whereabouts were unknown. PW5 identified Dr. Sandeep’s signature.
Citing Section 32 of the Indian Evidence Act, the Court observed:
“The testimony of PW5 that the doctor who examined PW1 was not available, has not been challenged, disproved or discredited. Therefore, the prosecution has succeeded in establishing one of the circumstances contemplated under Section 32(1) of the Evidence Act… In such circumstances, his statement becomes relevant under Section 32(2) of the Evidence Act.”
The Court relied on Prithi Chand v. State of Himachal Pradesh (AIR 1989 SC 702) and Rambalak Singh v. State of Bihar (AIR 1964 Patna 62) to hold that when a doctor cannot be produced without unreasonable delay, the post-mortem or medical report is admissible if the handwriting/signature is proved by a witness familiar with it under Sections 47 and 67 of the Evidence Act.
2. Contradictions in Testimony vs. Previous Statements The defense pointed out discrepancies between the victim’s statement under Section 164 CrPC and her testimony in court regarding penile penetration. The High Court, however, noted that the defense failed to follow the correct procedure prescribed under Section 145 of the Evidence Act to prove these contradictions.
The Court explained:
“The correct procedure to contradict a witness is to draw his attention to the relevant part of the contradictory statement which he had made before the Police Officer… If he replies in the affirmative, that admission establishes the contradiction… If he denies that part of the statement, that is to be proved in accordance with the provisions of the Evidence Act.”
Since this procedure was not strictly complied with, the defense could not take advantage of the alleged contradictions.
3. Nature of the Offence: Penetration vs. Sexual Assault The core legal issue was whether the act constituted “penetrative sexual assault.” The Court examined the First Information Statement (FIS) and the Section 164 statement of the victim.
- FIS: Stated the accused “started rubbing against my body”.
- Section 164 Statement: Did not mention penile penetration.
- Court Testimony: The victim claimed the accused put his private part into hers.
The Court observed that the testimony regarding penetration appeared to be an improvement over the earlier statements.
“In the FIS of PW7 and in the 164 statement of PW1, there is no case of penile penetration… This at best can be taken as rubbing of the penis of the accused against the genital of PW1.”
Referring to Section 3 of the POCSO Act, the Court held:
“The rubbing of the penis of the accused against the private part of PW1 does not apparently come within clauses (a) to (d) of Section 3 of the Act. Therefore, the case of penetrative sexual assault under Section 3 or aggravated penetrative sexual assault as contemplated under Section 5 of the POCSO Act cannot be held to have been made out.”
However, the Court noted that the DNA report showed seminal stains on the accused’s underwear matching his blood sample, but found the presence of semen on the accused’s underwear inconclusive regarding the act of penetration itself, given the abrupt intervention by the mother.
The Decision
The High Court concluded that while the offence under Section 6 was not established, the materials on record proved the commission of Sexual Assault under Section 7, which is punishable under Section 10. Since the victim was below 12 years of age, the offence fell under Section 9(m) of the POCSO Act (Aggravated Sexual Assault).
“The accused in this case was a doctor to whom the child was sent for medicine. The accused was in a position of authority and trust, and it was such a position that had been misused by him… In such circumstances, no leniency is called for.”
Outcome:
- Conviction Modified: From Section 6 of the POCSO Act to Section 9(m) of the POCSO Act.
- Sentence: Modified to Rigorous Imprisonment for 7 years (the maximum under the applicable section for the offence).
- Other Offences: Conviction and sentence under Section 342 IPC (Wrongful Confinement) and the fine were confirmed.
- Compensation: The Court directed the Delhi State Legal Service Authority to disburse the compensation to the victim within two months.
Case Details:
- Case Title: Madhu Shudhan Dutto v. State Govt. of NCT of Delhi
- Case Number: CRL.A. 649/2025 & CRL.M. (BAIL) 1046/2025
- Coram: Justice Chandrasekharan Sudha
