Absence of Medical or Forensic Evidence Cannot Prove Penetration — But Child's Testimony Can Sustain Conviction for Sexual Assault: Delhi High Court

In a significant ruling Delhi High Court reversed a conviction for aggravated penetrative sexual assault under Section 6 of the POCSO Act, citing inconsistencies in the prosecution’s version and lack of corroborative medical or forensic evidence. However, the Court upheld the conviction for non-penetrative sexual assault under Section 10 of the POCSO Act, relying on the credible testimony of the 10-year-old child victim.

Justice Manoj Kumar Ohri held that the inconsistencies in the statements of the child, her mother, and her tuition teacher, along with the intact hymen and negative forensic reports, made it unsafe to sustain the more serious charge of penetrative assault. However, the consistent version of inappropriate touching by the uncle, corroborated by the tuition teacher, was sufficient to hold him guilty under Section 10. Having already undergone over six and a half years of incarceration, the appellant was ordered to be released forthwith.

“Where Penetration Is Not Proved Beyond Reasonable Doubt, Conviction Cannot Rest on Suspicion Alone”: Court Sets Aside Section 6 POCSO Conviction

The Court was dealing with an appeal filed by Ram Krishan Singh, a man accused of repeatedly sexually assaulting his 10-year-old niece. He was earlier convicted by the Trial Court under Sections 6 and 10 of the POCSO Act and Section 506 IPC, and sentenced to 12 years’ rigorous imprisonment, among other punishments. His appeal challenged both the conviction and sentence.

The child had accused her uncle of first touching her private parts inappropriately in January 2019, and later, on 17 February and 22 February 2019, allegedly committing penetrative assault when the parents were away. The matter came to light when the child was educated about “good touch” and “bad touch” by her tuition teacher on 23 February, following which the family reported the matter to police.

The High Court carefully dissected the statements made by the child under Section 161 and 164 CrPC, her deposition at trial, and testimonies of the mother and the tuition teacher. The Court found a “serious lack of consistency” regarding the dates and details of the alleged penetrative assault.

“While the child victim stated that penetration occurred on 17.02.2019, the tuition teacher made no mention of any penetrative act,” the Court noted, adding that “the mother of the victim also spoke only of events on 22.02.2019 and 23.02.2019, and not of any incident on 17.02.2019.”

Importantly, the medical examination conducted on 24 February 2019 found that the child’s hymen was intact and no injury to private parts was recorded. The FSL (forensic) report was negative and found no semen or biological traces on the child’s clothes. The Court observed, “In such a case, where physical evidence is wholly absent and witness versions are contradictory, the conviction under Section 6 cannot be sustained.”

The Court clarified that while under the POCSO Act, the testimony of the child is paramount, it must still meet the test of legal sufficiency, especially for serious charges involving aggravated penetrative assault. “The prosecution failed to prove penetration beyond reasonable doubt,” Justice Ohri held.

“Testimony of a Child Can Be the Sole Basis for Conviction, But It Must Be Clear, Cogent and Consistent”: Court Retains Section 10 Conviction

Even as the High Court granted the benefit of doubt for the penetrative assault charge, it found that the child’s testimony was “unwavering and credible” in so far as it established inappropriate sexual contact by the accused, who was a relative residing in the same house.

“The child clearly stated that the accused had pulled down her pyjama and touched her private parts on more than one occasion,” the Court noted. Her statement was corroborated by her tuition teacher, who confirmed that on 23 February 2019, the child narrated that her “chacha had touched her inappropriately after removing his clothes and hers.”

Rejecting the defence plea of false implication due to a monetary dispute between the accused and the child’s father, the Court noted that “the father of the child, examined as DW-2 by the appellant himself, expressly denied any such dispute or quarrel.” The Court called the plea “an unsubstantiated theory lacking any material support.”

On the standard of proof for Section 10 of the POCSO Act, which punishes non-penetrative sexual assault, the Court stated: “The absence of injuries or forensic evidence is not fatal when credible testimony proves the offence of sexual assault through inappropriate touch.”

“Where The Offender Is A Relative And Residing In The Same Household, The Offence Falls Squarely Under Section 9(m)”: Court Applies POCSO Aggravating Clause

The Court further affirmed that the act fell within the ambit of Section 9(m) of the POCSO Act, which defines “aggravated sexual assault” when committed by a relative residing in the same household as the child. The Court held, “It is undisputed that the appellant was living with the victim’s family. The relationship and proximity aggravate the gravity of the act under Section 10 read with Section 9(m).”

“Sentence Already Undergone Covers Both Substantive and Default Sentences”: Appellant Ordered to Be Released

Having upheld only the lesser offence under Section 10 POCSO, which carries a maximum punishment of 5 years, the Court noted that the appellant had already served more than six and a half years. The Court observed that although a fine of ₹1,000 had not been paid, the imprisonment already served was sufficient to cover even the default sentence in lieu of fine.

Justice Ohri directed, “The appellant is to be released forthwith unless required in any other case.”

This ruling by the Delhi High Court reiterates the foundational principles of criminal justice: that while the safety of children and credibility of their testimony must be given paramount importance under POCSO, serious charges such as penetrative assault must be proved beyond reasonable doubt, especially where the sentence is substantially harsher.

The Court showed restraint in not allowing flawed procedural aspects and inconsistent testimonies to form the basis of a harsh conviction, but simultaneously upheld the essence of the child’s complaint where it was found legally trustworthy.

Date of Decision: 13 October 2025