The POCSO presumption does not start working the moment a case is registered: Delhi High Court sets aside a conviction on foundational facts
Justice Madhu Jain finds the accounts of the complainant and her mother irreconcilable on where she was found and how often, with no corroborating medical evidence, and allows the appeal.
A conviction under the Protection of Children from Sexual Offences Act, 2012 recorded by a fast-track special court at Tis Hazari has been set aside by the Delhi High Court. Justice Madhu Jain held that the statutory presumption under Section 29 of the Act does not come into operation simply because a case has been registered: the prosecution must first establish the foundational facts of the offence through cogent and reliable evidence, and only then does the burden shift to the accused. Finding material contradictions between the complainant's account and her mother's on particulars central to the prosecution case, and no medical evidence corroborating the allegation, the Court allowed the appeal and directed the appellant's release.
How the case reached the High Court
The appeal was filed under Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 528 — the provisions corresponding to Sections 374 and 482 of the Code of Criminal Procedure, 1973 — against a judgment of 19 November 2025 and an order on sentence of 16 December 2025 passed by the Additional Sessions Judge (FTSC) (POCSO)-01, Central, Tis Hazari District Courts.
The case arose from a complaint made in March 2022. The complainant, a child whose identity has been withheld, alleged that the appellant, a neighbour who lived in a rented room in the house opposite hers, had assaulted her when she went downstairs at night, and that there had been further incidents. The first information report was registered at Police Station Burari under Sections 376 and 363 of the Indian Penal Code and Section 6 of the POCSO Act. She was medically examined at a government hospital, her statement was recorded under Section 164 of the Code, and the investigating agency collected school records to ascertain her age.
In October 2022 a formal charge was framed under Sections 451, 342 and 363 of the IPC, under Section 376-A-B read with Section 376(2)(n), and under Section 6 of the POCSO Act. The prosecution examined six witnesses. The trial court convicted and sentenced the appellant, who had by then been in custody.
Where the two accounts parted company
The High Court's reasoning rests on the evidence of the two central witnesses — the complainant herself and her mother — and on what each said at different stages.
On the number of occasions, the prosecution case and the complainant's own cross-examination put the incident as having happened on two or three occasions. When the mother was asked specifically whether her daughter had disclosed to her that the incident had occurred on three occasions, she denied it categorically. The Court treated that as significant precisely because the mother's testimony is an important foundation of the prosecution case and of the immediate disclosure said to have been made to her.
On where the child was found, the mother's own account was not consistent. In examination-in-chief she said the complainant was found in the appellant's room. In her later testimony she said the complainant was found at the main gate of her own house and that the appellant had pushed her out of his room. She was confronted with her statement under Section 161 of the Code, in which it was recorded that the complainant was found at the main gate of her house. The manner and place in which she was found, the Court observed, were themselves not consistently stated.
A third point concerned access. The complainant had stated that the ground-floor gate remains locked and the keys remain with the tenants residing there. In those circumstances, the Court held, it is highly unlikely that the appellant would have had the keys, and the prosecution offered no explanation of how he came to be in possession of them — which cast further doubt on its version.
The Court also recorded two features of the way the prosecution case developed. The complainant admitted in cross-examination that before the police arrived, her mother and maternal uncle had told her what she was required to tell the police. And when asked whether her maternal uncle had borrowed Rs 2 lakh from the appellant's father, she first answered in the affirmative and immediately thereafter said no such money had been borrowed. The judgment is careful about what it draws from this: these circumstances, it says, do not by themselves establish tutoring or false implication, but they are relevant in assessing the reliability of the later elaborations in the prosecution version — particularly where those elaborations were introduced through leading questions put during cross-examination by the Additional Public Prosecutor.
On the medical evidence, the first examination recorded no external injuries, the mother having declined an internal examination. A further examination some days later found no tears or lacerations.
How the prosecution version grew
Running underneath those specific contradictions is a point about sequence that the judgment treats as significant in its own right.
The allegation as first made concerned a single episode. The account that the incident had happened on two or three occasions came later, and the Court identified where it came from: it was introduced through leading questions put to the complainant during cross-examination by the Additional Public Prosecutor. The mother, asked whether her daughter had told her about three occasions, said she had not.
The Court's handling of this is measured. It did not say the additional allegations were invented. What it said was that the circumstances — a witness told in advance what to say, a flat self-contradiction on an unrelated question of a loan between the two families, and elaborations emerging through leading questions from the prosecution's own side — are relevant when deciding how much weight the later version can bear. In a case resting on oral testimony, that assessment is the whole case.
The medical evidence could not supply what the testimony lacked. No external injuries were recorded at the first examination, at which an internal examination was declined, and the later examination found no tears or lacerations. The judgment does not treat the absence of medical findings as disproving the allegation; it treats it as meaning there was nothing independent to set against testimony that had become unreliable.
What Section 29 does and when it starts
Section 29 of the POCSO Act provides that where a person is prosecuted for certain offences under the Act, the Special Court shall presume that he has committed the offence unless the contrary is proved. The question in cases of this kind is what has to be in place before that presumption begins to operate.
The Court took its answer from Debraj Dutta v. State of West Bengal, in which the Supreme Court reiterated that the presumption under Section 29 does not arise automatically upon registration of a case. The prosecution must first establish the foundational facts constituting the alleged offence, and unless those facts are proved through cogent and reliable evidence, the burden does not shift to the accused.
It then relied on Deepak in JC v. State Govt. of NCT Delhi, where the Supreme Court held that the presumptions under Sections 29 and 30 do not dispense with an objective appreciation of the prosecution evidence, and that inherent inconsistencies, contradictions and gaps in the prosecution case may themselves be relied upon to rebut the statutory presumption. The passages the High Court set out make the point in stronger terms: statutory presumptions cannot be read to mean that the prosecution version is to be treated as gospel truth in every case; the presumptive provisions notwithstanding, courts are not absolved from their essential duty to analyse the evidence in the light of the features of the particular case; a court should not mechanically accept the ipse dixit of the prosecution and give a stamp of approval to a story that is absurd or improbable; and at the end of a trial an accused should not stand at a discount merely because the statute under which he is tried contains presumptive provisions. The accused is to be given full room to prove the contrary and displace the presumption.
The third authority was the same Bench's own decision in Vikash v. The State Govt. of NCT of Delhi. That judgment restates the settled position that the testimony of the prosecutrix can by itself form the basis of a conviction, but that such testimony must inspire confidence and must not suffer from material infirmities or inherent improbabilities; where the prosecution case rests solely on that testimony and it undergoes material improvements or is inconsistent with earlier versions, the Court must scrutinise the evidence with greater caution. In Vikash the Court had found materially different versions across the statements under Sections 161 and 164 and the deposition at trial, held that those inconsistencies went to the very genesis of the prosecution case, and concluded that in the absence of reliable and consistent evidence establishing the foundational facts beyond reasonable doubt it would be unsafe to sustain the conviction.
Applying it
Measured against those principles, the Court held that the case and the evidence led by the prosecution had created a reasonable doubt. The material contradictions between the complainant's testimony and her mother's, particularly on material particulars of the alleged incident, created doubt about the prosecution case, and there was no medical evidence corroborating the allegation.
The structure of the finding is worth noting. The Court did not hold that the complaint was false, and it recorded expressly that the circumstances surrounding the pre-police briefing did not by themselves establish tutoring. What it held was narrower and, in a statute built on a presumption, more consequential: that the foundational facts had not been established by evidence capable of being relied on, so the presumption never came into play and the trial court had convicted without the base on which Section 29 rests.
It also located the trial court's error. In Vikash the Bench had observed that the trial court there had failed adequately to appreciate the material improvements while recording the conviction, and the same criticism underlies the conclusion here — that inconsistencies going to the genesis of the case were not given the weight they required.
The distinction the judgment draws is worth stating precisely, because it is easily blurred. A presumption of the Section 29 kind is sometimes treated as though it reverses the burden from the outset, so that an accused charged under the Act begins the trial having to prove his innocence. On the law as the High Court applies it, that is not how the provision works. The prosecution retains the task of proving the facts that constitute the offence — that the act occurred, that it occurred as alleged, that this accused did it. Only once that is done by evidence capable of being believed does the presumption engage and the accused come under a burden to displace it.
The consequence is that inconsistencies of the kind found here are not answered by invoking the presumption. They operate before it, on the question whether the foundation exists at all; and, as Deepak in JC puts it, they may themselves be relied upon to rebut the presumption even where it has arisen. That is why the Court could set aside a conviction without disturbing anything about the gravity of the offence charged or the protection the statute is meant to give.
What the judgment does not do is equally clear from its terms. It records no finding that the complaint was false or motivated; it expressly declines to infer tutoring from the pre-police briefing; and it says nothing about the loan that was raised and then denied beyond noting the contradiction. The appellant was acquitted on the benefit of doubt, which is a conclusion about the sufficiency of proof and not a finding about what happened.
Order
The appeal was allowed. The judgment of 19 November 2025 and the order on sentence of 16 December 2025 were set aside, and the pending applications disposed of in those terms.
The Court directed that the appellant be released from jail forthwith, if not required in any other case, and that a copy of the order be sent to the concerned Jail Superintendent for information and compliance.
The appellant had been convicted in November 2025 and sentenced the following month, so the custody he served on this conviction ran for some ten months before the appeal was decided, on top of whatever he had undergone during the trial that began with the charge framed in October 2022.
Three decisions now sit together on this point — Debraj Dutta on when the presumption arises, Deepak in JC on what it does not dispense with, and this Bench's own Vikash on how a prosecutrix's testimony is to be scrutinised where it has materially improved. Read as a set, they describe a sequence a trial court is expected to follow before the presumption does any work at all: identify the foundational facts the offence requires, ask whether the evidence actually establishes them, and only then turn to what the accused must displace.