The Delhi High Court has partly allowed a criminal appeal filed by the accused, modifying his conviction under the Protection of Children from Sexual Offences Act, 2012 (PoCSO). The Court held that while the prosecution succeeded in proving sexual assault on a child below twelve years, the evidence on record did not establish penetrative sexual assault as defined under Section 3 of the PoCSO Act. Consequently, the conviction under Section 6 PoCSO was altered to Section 9(m) read with Section 10, and the sentence was reduced from ten years to seven years’ rigorous imprisonment, while the conviction under Section 342 IPC was affirmed.
The case arose from an incident dated June 28, 2016, when a nine-year-old girl was sent to the appellant, a doctor running a clinic in Tughlakabad, Delhi, to procure medicines for her younger sister. It was alleged that the appellant wrongfully confined the child inside the clinic and subjected her to sexual assault. An FIR was registered on the same day on the complaint of the child’s mother. By judgment dated January 17, 2025, the Special Court (PoCSO), Saket Courts, convicted the appellant under Section 6 PoCSO and Section 342 IPC and sentenced him to ten years’ rigorous imprisonment.
In appeal, the appellant contended that the prosecution evidence did not disclose penetration and that there were material inconsistencies between the victim’s first version, her statement under Section 164 CrPC, and her deposition before the Court. It was also argued that the medical evidence was unreliable since the doctor who conducted the medical examination was not examined as a witness.
While analysing the evidence, Justice Chandrasekharan Sudha examined the testimonies of the victim and her mother, the medico-legal certificate, and the forensic report. The Court held that the MLC had been validly proved through another doctor acquainted with the handwriting and signature of the examining doctor, whose whereabouts were not traceable, in accordance with the Evidence Act. However, on a careful reading of the earliest versions of the incident, the Court found that clear penile penetration was not consistently alleged. The Court observed that the evidence indicated rubbing and physical sexual contact, which would constitute sexual assault but not penetrative sexual assault.
The Court further held that the forensic findings could not, by themselves, elevate the offence to penetrative sexual assault in the absence of consistent allegations of penetration or ejaculation, particularly where the assault appeared to have been interrupted. Applying the statutory definitions strictly, the Court concluded that the offence made out was aggravated sexual assault on a child below twelve years under Section 9(m) PoCSO.
Accordingly, the High Court modified the conviction, reduced the sentence to seven years’ rigorous imprisonment, upheld the conviction under Section 342 IPC along with the fine, and directed the Delhi State Legal Services Authority to ensure the disbursement of compensation to the victim within two months. The appeal was partly allowed.
Appearance:
For Appellant: Advocate Biswajit Kumar P. with Khushboo Gupta.
For Respondent: APP Pradeep Gahlot, with Advocate Amit Gupta, Kshitij Vaibhav, Muskan Nagpal, and H.S. Mahapatra.
