Delhi HC sets aside 20-year POCSO sentence: graver offence not proved, five-year term for lesser one stands
Justice Madhu Jain acquitted a neighbour of aggravated penetrative sexual assault and rape of a girl aged under six, holding that the child testimony proved sexual touching but not insertion, and upheld his conviction and five-year sentence for aggravated sexual assault under Section 10 of the POCSO Act.
The Delhi High Court has set aside a 20-year sentence for aggravated penetrative sexual assault on a child aged about five years and nine months. It held that the evidence proved the man had sexually touched her but did not prove penetration beyond reasonable doubt.
Justice Madhu Jain partly allowed the appeal of Vishnu Prasad, a neighbour of the child’s family, on 30 October 2026. His conviction for aggravated sexual assault under Section 10 of the Protection of Children from Sexual Offences Act, 2012, with five years’ rigorous imprisonment, was upheld.
From complaint to a 20-year sentence
The child’s mother lodged a complaint on 23 July 2021. While bathing her daughter the previous day, she said, the girl complained of pain and disclosed that a neighbour had sexually assaulted her on 21 July, kissed her and threatened to beat her if she told anyone.
The child was medically examined on 24 July 2021, but her parents declined consent for an internal examination. Her statement under Section 164 of the Code of Criminal Procedure was recorded the same day.
A special POCSO court framed charges under Sections 376AB, 354A and 506 of the Indian Penal Code and Sections 6 and 10 of the POCSO Act. On 7 November 2023 it convicted him on all counts, finding that he had inserted his finger into the child’s private part.
On 15 February 2024 it imposed 20 years’ rigorous imprisonment under Section 6, five years under Section 10, three years under Section 354A and one year under Section 506, all concurrent. It also directed him to pay the child Rs 2 lakh and awarded Rs 8.5 lakh under the Delhi Victim Compensation Scheme, 2018.
The defence: shifting accounts
Mr Harsh Prabhakar, for the appellant, pointed to inconsistencies about the place of the incident across the child’s statements, her parents’ evidence and the site plan. He argued that her account of the act itself also varied between insertion and touching.
He added that the medical record showed no external injury, the forensic report found nothing incriminating, and the FIR came two days after the incident. Relying on Ram Preet v. State, 2024:DHC:9936-DB, he argued that the act at most amounted to aggravated sexual assault under Sections 9 and 10.
Ms Meenakshi Dahiya, Additional Public Prosecutor, defended the conviction, relying on the child’s evidence, her mother’s testimony and a birth certificate proving her age. Counsel from the Delhi High Court Legal Services Committee also appeared for the child.
The question the court framed
“The principal question arising for consideration in the present appeal is whether the prosecution has established the commission of aggravated penetrative sexual assault upon the prosecutrix, or whether the evidence proves aggravated sexual assault without penetration.” (para 24)
Section 3(b) of the POCSO Act covers insertion of any object or body part, other than the penis, into a child’s vagina, urethra or anus to any extent. Committed on a child under 12, it is aggravated under Section 5(m) and punishable under Section 6 with at least 20 years.
Touching with sexual intent, without penetration, is sexual assault under Section 7, aggravated under Section 9(m) for a child under 12 and punishable under Section 10 with five to seven years. The conviction under Section 376AB IPC, based on Section 375(b), likewise needed proof of penetration.
What the child said in court
In her evidence the child identified the appellant, pointed to her private part, and said he had touched her, lifted her, touched her again and hurt her with his nail. Asked by the trial judge whether the nail had touched the outside or the inside, she answered that it was inside.
Justice Jain found that her testimony sufficiently established sexual contact. But the trial court, she held, had treated the answer about the nail as proof of insertion without distinguishing contact with the private part from penetration into it.
The answer came in the context of identifying where the nail had touched her and did not clearly establish that he inserted a finger or nail. In her examination-in-chief the child had consistently described touching.
Her earlier statements pulled in different directions. The Section 161 statement to police spoke of insertion of a finger; the Section 164 statement before the Magistrate described touching. Neither is substantive evidence, the court said, so the police statement alone could not prove penetration.
The court said it was conscious that a child cannot be expected to describe sexual assault with anatomical precision. Even so, the essential ingredient of penetration must emerge from the evidence with sufficient certainty.
Precedent and the statutory presumption
The court followed Ram Preet and two coordinate bench rulings, Jeetu Ranjeet v. State, 2025:DHC:8851, and Hamid Khan v. State, 2026:DHC:78. In each, a Section 6 conviction was altered once the evidence proved touching but not insertion, because “the conviction must correspond to the offence actually proved” (para 40).
The medical evidence did not close the gap. The absence of injury did not rule out penetration, and the parents’ refusal of an internal examination justified no adverse inference, but nothing in the record could establish insertion either.
The discrepancies about the place and the one-day gap before the FIR did not discredit the account of sexual touching, given the child’s age.
Citing Deepak in JC v. State, 2026 INSC 1008, the court added that the presumption under Section 29 of the POCSO Act is not absolute. The foundational facts of the specific offence must be proved first, and here those for penetration were not.
Applying Attorney General for India v. Satish, the court held that the touching, its circumstances and the warning not to tell anyone established sexual intent. With the child under 12, that made out aggravated sexual assault under Section 9(m).
Order
The conviction under Section 376AB IPC and Section 6 of the POCSO Act, and the 20-year sentence, fine and default term under Section 6, were set aside. The conviction under Sections 9(m) and 10, with five years’ rigorous imprisonment, a Rs 10,000 fine and one month’s default term, was upheld.
The convictions under Sections 354A and 506(1) IPC stand, with punishment governed by Section 42 of the POCSO Act. The nominal roll showed four years, one month and 17 days in custody as of 9 September 2025, plus four months and five days of remission.
The jail superintendent must recompute the period undergone, and the appellant is to be released if he has completed the five-year term, subject to the fine or default sentence and if not required in any other case. The compensation ordered for the child remains undisturbed.