Vishnu Prasad vs State Of Nct Of Delhi

Court
Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16.10.2026
Date of Decision: 30.10.2026
Uploaded on: 30.10.2026
# CNR No. DLHC010154512024
+ CRL.A. 269/2024
VISHNU PRASAD .....Appellant
Through: Mr. Harsh Prabhakar, Mr. Dhruv
Chaudhary, Ms. Sakshi Gupta, Mr.
Shubham Sourav and Mr. Vijit Singh,
Advocates.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Ms. Meenakshi Dahiya, APP with Ms.
Vanshika Singh, Ms. Apoorva Khosla,
Advocates for State.
Ms. Astha, Adv. (DHCLSC) and Ms.
Megha Singh, Adv. for prosecturix.
Insp. Satbir Singh, PS: Jaitpur.
CORAM:
HON’BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present criminal appeal has been preferred under Section 374
read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the “Cr.P.C.”), assailing the judgment of conviction dated
07.11.2023 and the order on sentence dated 15.02.2024 passed by the
learned Additional Sessions Judge-06 (POCSO), South-East District, Saket
Courts, New Delhi in Sessions Case No. 339/2021, arising out of FIR No.
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 1 of 26

358/2021, registered at Police Station Jaitpur, Delhi.
2. Vide the impugned judgment, the appellant was convicted for the
offences punishable under Sections 376AB, 354A and 506 of the Indian
Penal Code, 1860 (hereinafter referred to as the “IPC”) and Sections 6 and
10 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the “POCSO Act”).
BRIEF FACTS:
3. The prosecution case, as emerging from the record, is that on
23.07.2021, the complainant, namely, ‘AR’ (hereinafter referred to as the
“complainant”), along with her husband ‘DP’ and their minor daughter ‘K’
(hereinafter referred to as the “prosecutrix”), approached Police Station
Jaitpur and lodged a complaint alleging that the appellant, who was residing
in their neighbourhood, had sexually assaulted the prosecutrix.
4. It was alleged in the complaint that on 22.07.2021, while the
complainant was bathing the prosecutrix, the latter complained of pain in
her private parts. Upon being enquired about the same, the prosecutrix
disclosed that on the previous day, i.e., 21.07.2021, the appellant, whom
she identified as the father of ‘Astha Didi’, had inserted his finger into her
private part. It was further alleged that the appellant had kissed the
prosecutrix and threatened to beat her if she disclosed the incident to
anyone.
5. On the basis of the aforesaid complaint, FIR No. 358/2021 was
registered on 23.07.2021 at Police Station Jaitpur for the offences
punishable under Sections 376 and 506 IPC and Section 6 of the POCSO
Act, and investigation was taken up.
6. During the course of investigation, the prosecutrix was taken to
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 2 of 26

AIIMS Hospital, New Delhi, where she was medically examined on
24.07.2021. However, her parents declined to consent to her internal
medical examination. The medical documents pertaining to her
examination were collected during the investigation. The statement of the
prosecutrix under Section 164 Cr.P.C. was also recorded before the learned
Metropolitan Magistrate on 24.07.2021.
7. Upon completion of the investigation, a charge-sheet was filed
before the learned Trial Court on 20.09.2021. Subsequently, a
supplementary charge-sheet, along with the forensic examination report,
was also placed on record.
8. Vide order dated 25.10.2021, the learned Trial Court framed charges
against the appellant for the offences punishable under Sections 376AB,
354A and 506 IPC and Sections 6 and 10 of the POCSO Act. The appellant
pleaded not guilty to the charges and claimed trial.
9. To prove its case against the accused, the prosecution examined
seven witnesses before the learned Trial Court, whose testimonies have
been discussed in the impugned judgment as under:
“ 3.1 PW-1 Ms. ‘K’ is the victim. She was aged
about 06 years at the time of her evidence. She
identified the accused in the court and has deposed
regarding the facts of the case. She had deposed
about her mother taking her to the police station and
thereafter, by the police to the doctor. She has
deposed about her coming to the court for getting
her statement recorded.
3.2 PW-2 Ms. ‘AR’ is the mother of the victim. She
has deposed about the facts of the case and giving
of her complaint Ex. PW2/A, she has deposed about
her daughter being taking to AIIMS Hospital for the
medical examination, her refusal of internal
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 3 of 26

examination of her daughter and signing of the
clinical notes Ex. PW2/B & Ex. PW2/C. She
identified her signatures on MLC Ex. PW2/D. She
has deposed regarding showing the place of
incident to the police and preparation of site plan
Ex. PW2/E. She has deposed recording recording of
the statement under Section 164 CrPC of her
daughter K and herself as Ex. PW2/F & Ex. PW2/G.
3.3 PW-3 Dr. Kaushik had examined the victim girl
on 24.07.2021 and had prepared MLC Ex. PW2/D.
The emergency card prepared by him is Ex. PW3/A.
3.4 PW-4 Sh. Dinesh , Sub Registrar, Birth & Death
Unit, NDMC, Mandir Marg has produced the birth
certificate of the victim girl Ex. PW4/A. According
to birth certificate, date of birth of the victim is
07.10.2015.
3.5 PW-5 Sh. ‘DP’ is the father of the victim. He has
deposed regarding the facts of the case. He has
deposed that he had signed the complaint Ex.
PW2/A. He has deposed that his daughter was taken
to the AIIMS Hospital for her medical examination.
He has identified his signatures on Ex. PW2/B and
Ex. PW2/C. He has deposed that police had visited
the room in which the sexual assault took place with
her daughter and the site plan Ex. PW2/E was
prepared. He has deZposed that his daughter was
produced before the Learned MM for recording of
her statement.
3.6 PW-6 HC Subodh Nagar is the part of
investigation team. He had joined the investigation
on 23.07.2021 along-with the IO. He has deposed
regarding arrest of the accused vide Ex. PW6/A,
conducting personal search of the accused vide Ex.
PW6/B and recording disclosure statement of the
accused vide Ex. PW6/C. He has deposed that he
had taken the accused to the AIIMS Hospital and
after the medical examination of the accused, the
doctor collected the exhibits and handed over to
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 4 of 26

him. He handed over the exhibits to the IO which
was seized vide Ex. PW6/D.
3.7 PW-7 SI Madhuri is the Investigation Officer
(IO) of the case. She has deposed regarding the
investigation done by her. She has deposed
regarding receiving of the information on
23.07.2021 of the complainant coming to the police
station. The examination of the complainant and
victim and recording of complaint Ex. PW-2/A. She
has informed regarding the preparation of Rukka
Ex. PW7/A and getting the present case registered.
She has deposed regarding the arrest of the accused
vide memo Ex. PW6/A and conducting personal
search of the accused vide memo Ex. PW6/B. She
has deposed regarding recording of the disclosure
statement of the accused vide memo Ex. PW6/C. She
has deposed that the victim was sent for her medical
examination and the blood sample of the victim was
preserved. It was seized vide memo Ex. PW7/B. She
has deposed regarding seizure of the exhibits
collected from the accused during his medical
examination vide memo Ex. PW6/A. She has
deposed regarding moving of the application for
recording of the statement of the victim under
Section 164 CrPC vide memo Ex. PW7/C. Her
identifying the victim before the concerned Judge
vide memo Ex. PW7/D and recording of the
statement of the victim under Section 164 CrPC vide
memo Ex. PW7/E. She has deposed regarding
preparation of the site plan Ex. PW2/E at the
instance of the victim. Collecting the birth record of
the victim and sending the exhibits to the FSL. She
has deposed regarding preparation of the charge-
sheet and of the supplementary charge-sheet and
recording the statement of the witnesses under
Section 161 CrPC and filing the charge-sheet after
completion of the investigation.
3.8 Accused admitted copy of proceedings of
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 5 of 26

Learned MM dated 24.07.2021 for recording of
statement of the victim under Section 164 CrPC as
document A-1, Potency report of accused dated
23.07.2021 prepared by Dr. Venkatesh as document
A-2, Statement of W/Ct. Sarla as document A-3,
Statement of Ct. Ajay regarding deposit of exhibits
in FSL vide RC No. 118/21 as as document A-4, A-
5 & A-6, Statement of HC Vivekanand regarding
deposit of exhibits in Malkhana as document A-7
and duty officer ASI Satish regarding copy of FIR
No. 358/21 as document A-8 in his statement u/s 294
Cr. PC recorded on 23.12.2022.
4. No other witness was examined by the
prosecution and PE was closed.”
10. On the completion of prosecution evidence, an examination of accused
U/s 313 Cr. P.C. was conducted on 14.10.2023, during his examination, he
has negated all the allegations and has taken his defence that he is innocent
and has been falsely implicated in the case. No defence evidence was led by
the accused.
th
11. The learned Trial Court, vide the impugned judgment dated 7
November 2023, convicted the appellant and held as under:
“26. On the basis of above said discussions, the
prosecution has been able to prove the case against
the accused beyond all reasonable doubt. The
accused inserted his finger into the vagina/ urethra
of the minor victim aged about 4 years 09 months
and committed rape on her as defined under Section
375 (b) of IPC and punishable under Section 376AB
IPC. The accused committed sexual harassment of
the victim girl and committed offence punishable
under Section 354A IPC. The accused threatened
the victim and committed the offence punishable
under Section 506 (i) IPC. The accused committed
penetrative sexual assault as defined under Section
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 6 of 26

3 (b) of POCSO Act and aggravated penetrative
sexual assault as defined under Section 5 (m) of
POCSO Act and committed the offence punishable
under Section 6 of the POCSO Act. The accused
committed aggravated sexual assault on the minor
victim as defined under Section 9 (i) and (m) of the
POCSO Act and committed the offence punishable
under Section 10 of the POCSO Act 2012.
30. Therefore, the accused Vishnu Prasad is
convicted for the offence punishable under Section
376AB IPC, Section 354A IPC, Section 506 IPC,
Section 6 & Section 10 of POCSO Act 2012. ”
12. Consequent upon the judgment of conviction, the learned Trial Court,
th
vide Order on Sentence dated 15 February 2024, imposed the following
sentence upon the appellant:
“9. On the basis of overall facts and circumstances,
the convict Vishnu Prasad is sentenced to Rigorous
Imprisonment for Twenty years for the offence
punishable under Section 6 of the POCSO Act and
a fine of Rs. 10,000/-. In default of the payment of
fine, the convict is to undergo SI for one month. He
is sentenced to Rigorous Imprisonment for Five
Year for the offence punishable under Section 10
of the POCSO Act and fine of Rs. 10,000/-. In
default of the payment of fine, he is undergo SI for
One month . He is sentenced to Rigorous
Imprisonment for Three Years for the offence
punishable under Section 354A IPC . He is
sentenced to Simple Imprisonment for One Year
for the offence punishable under Section 506 (1)
IPC.
10. The convict is also directed to pay the expenses
of the State to the extent of Rs. 4,514/- within one
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 7 of 26

month. He is also directed to pay the compensation
of Rs. 2,00,000/- (Two Lacs only) to the victim.
11. Benefit of Section 428 CrPC be also given to
the convict and it is directed that all the sentences
shall run concurrently.
12. On the basis of the entire facts of circumstances,
the victim is also awarded final compensation of
Rs. 8,50,000/- (Eight Lac Fifty Thousand Only) to
be paid under the Delhi Victim Compensation
Scheme 2018 r/w Rule 33(8) POCSO Act 2012. The
above compensation to be paid under Delhi Victim
Compensation Scheme is in addition to the
compensation to be paid by the convict. However,
any interim compensation awarded and received by
the victim is to be adjusted in the final compensation
to be paid under Delhi Victim Compensation
Scheme.
13. Copy of the order of sentence be given dasti to
the convict. The copy of the judgment be also given,
if not received, to the convict. The copy of the
judgment and the sentence be sent to the parents of
the victim through Learned Counsel for DCW. The
copy of the judgment and sentence be also sent to
Learned Secretary, DLSA, South-East.”
13. Aggrieved by the aforesaid impugned judgment and order on
sentence, the appellant has challenged both before this Court.
SUBMISSIONS ON BEHALF OF THE APPELLANT
14. Learned counsel submitted that the testimony of the prosecutrix
(PW-1) suffers from material inconsistencies regarding the place of
occurrence. In her statement under Section 161 Cr.P.C., the prosecutrix
referred to an empty room, whereas in her statement under Section 164
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 8 of 26

Cr.P.C. and her deposition before the learned Trial Court, she referred to
the terrace. Further, her mother (PW-2) described the place as a room on
the upper floor, while her father (PW-5) referred to the appellant's room.
The site plan, however, indicated a hall as the place of occurrence.
15. It was further submitted that the prosecutrix had given varying
accounts of the alleged sexual act. While her statement under Section 161
Cr.P.C. referred to insertion of a finger into her private part, her statement
under Section 164 Cr.P.C. referred to touching. During her examination-in-
chief, she again referred to touching, whereas, in response to a question put
by the learned Trial Court, she stated that the appellant's nail had touched
the inside of her private part. Learned counsel also pointed out that the
prosecutrix had referred to an additional incident involving the appellant's
son, Anubhav, during her deposition. It was contended that these
inconsistencies made it unsafe to rely upon her testimony without
corroboration. Reliance was placed upon Chaggan Dame v. State of
Gujarat, 1995 SCC (Cri) 182 , and Pradeep v. State of Haryana, 2023 SCC
OnLine SC 77 7 .
16. Learned counsel further submitted that the medical and forensic
evidence did not support the allegation of penetration. No external injury
or redness was observed during the medical examination of the prosecutrix,
and her parents had declined an internal examination. It was also pointed
out that the FSL report did not reveal any incriminating biological material
connecting the appellant with the alleged offence.
17. It was further submitted that the alleged incident occurred on
21.07.2021 and was disclosed to the mother of the prosecutrix on
22.07.2021, whereas the FIR was registered only on 23.07.2021. Learned
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 9 of 26

counsel contended that this delay had not been satisfactorily explained.
18. Learned counsel further submits that even if the prosecution case
were accepted, the evidence did not establish penetrative sexual assault
beyond reasonable doubt. In the alternative, it was contended that the
alleged act would, at best, constitute aggravated sexual assault punishable
under Sections 9 and 10 of the POCSO Act. Reliance in this regard was
placed upon the decision of the Division Bench of this Court in Ram Preet
v. State, 2024:DHC:9936-DB.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE
19. The learned APP on behalf of the State opposes the appeal and
submitted that the prosecution had successfully established the guilt of the
appellant beyond all reasonable doubt. It was submitted that the present
case arose out of FIR No. 358/2021, registered at Police Station Jaitpur on
the complaint made by the mother of the minor victim.
20. It was submitted that, on 23.07.2021, the complainant reported that
her daughter, aged about five years and nine months, had been sexually
assaulted by the appellant, who was their neighbour.
21. It was further submitted on behalf of state that the prosecution
evidence, including the statement of the victim, the testimony of her mother
and the other evidence brought on record, established the involvement of
the appellant in the commission of the offences. Learned counsel submitted
that the age of the victim was duly established through her birth certificate,
produced by Sh. Dinesh, Sub-Registrar, Birth and Death Unit, NDMC,
which recorded her date of birth as 07.10.2015.
22. It was further submitted that the learned Trial Court had duly
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 10 of 26

appreciated the evidence on record and rightly convicted the appellant for
the offences punishable under Sections 376AB, 354A and 506 IPC and
Sections 6 and 10 of the POCSO Act, 2012.
FINDINGS AND ANALYSIS
23. This Court has heard learned counsel for both the parties and perused
the material on record.
24. 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.
25. Before examining the evidence, it would be apposite to refer to the
relevant statutory provisions. Section 3(b) of the POCSO Act defines
penetrative sexual assault to include insertion of any object or part of the
body, other than the penis, into the vagina, urethra or anus of a child, to any
extent. Section 5(m) provides that where penetrative sexual assault is
committed upon a child below twelve years of age, it constitutes aggravated
penetrative sexual assault, punishable under Section 6 of the Act. The
relevant provisions of the POCSO Act are reproduced hereinbelow:
“ Section 3 Penetrative sexual assault .—A person is
said to commit “penetrative sexual assault” if—
……
(b) he inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do
so with him or any other person; or”
“5. Aggravated penetrative sexual assault .—
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 11 of 26

…..
(m) whoever commits penetrative sexual assault on
a child below twelve years; or”
“6. Punishment for aggravated penetrative sexual
assault .—(1) Whoever commits aggravated
penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of natural life of
that person and shall also be liable to fine, or with
death.
(2) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet
the medical expenses and rehabilitation of such
victim.”
26. Section 7 of the POCSO Act, on the other hand, deals with sexual
assault involving physical contact with sexual intent, without penetration.
Where such an act is committed upon a child below twelve years of age,
Section 9(m) is attracted, making the offence punishable under Section 10
of the Act. The relevant provisions of the POCSO Act are reproduced
hereinbelow:
“7 . Sexual assault .— Whoever, with sexual intent
touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis,
anus or breast of such person or any other person,
or does any other act with sexual intent which
involves physical contact without penetration is
said to commit sexual assault.”
“9. Aggravated sexual assault .—
…….
(m) whoever commits sexual assault on a child
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 12 of 26

below twelve
years; or”
“10. Punishment for aggravated sexual assault .—
Whoever, commits aggravated sexual assault shall
be punished with imprisonment of either
description for a term which shall not be less than
five years but which may extend to seven years,
and shall also be liable to fine.”
27. The distinction between the aforesaid offences lies in the nature of
the act established by the prosecution. While insertion of a finger into the
vagina or urethra, even to the slightest extent, would attract Section 3(b),
touching of the private part of a child with sexual intent, without proof of
penetration, would fall within Section 7. The aggravating circumstance of
the child being below twelve years of age is separately recognised under
Sections 5(m) and 9(m).
28. Insofar as the conviction under Section 376AB of the IPC is
concerned, the relevant allegation pertains to penetration by a finger, which
is covered by Section 375(b) IPC. Accordingly, proof of penetration is also
essential for sustaining the conviction under Section 376AB IPC in the
present case. Section 375 of the IPC is reproduced hereinbelow:
“375. Rape.—A man is said to commit “rape” if
he—
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so
with him or any other person; or
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 13 of 26

(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes
her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any
other person,
under the circumstances falling under any of the
following seven.”
29. In the present case, the date of birth of the prosecutrix, as established
through the birth certificate (Ex. PW-4/A), is 07.10.2015. On the date of
the alleged incident, i.e., 21.07.2021, she was approximately five years and
nine months old. Her age has been duly established and has not been
disputed. The controversy, therefore, centres upon the precise nature of the
act committed by the appellant.
30. The prosecution case rests primarily upon the testimony of the
prosecutrix, examined as PW-1. During her deposition before the learned
Trial Court, she identified the appellant as the person who had touched her
private part. She further stated that the appellant had lifted her, touched her
again and that his nail had hurt her private part. The relevant portion of her
examination-in-chief is reproduced hereunder:
Witness Statement in examination in chief
PW- 1
the uncle who is shown to me on the screen
has touched me. The witness has pointed out
towards her vagina.-She further deposed –
unhone mujhe god me uthaya tha or firse
dubara chhuya tha or mujhe nakhun lag
gya tha. On clarification, witness states that
shushu vali jagah pe nakhun lag gya tha. I
“K”-
victim
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 14 of 26

do not recollect the name of didi whose
father I have seen today. I used to go to the
house of uncle for playing and his house was
in front of my house. The said uncle has 3
kids. The name of one kid is Anubhav bhaiya
and the other is Astha didi. I had gone to the
roof top where Anubhav bhaiya was playing
with bubble gum. Anubhav bhaiya told me-
pehle mujhe kiss do, fir gubbara fulaunga.
This uncle has touched me and also told me
not to tell this to anyone and the uncle said
this for four times. The uncle was on the
roof and I was also on the roof and we both
were alone on the roof when he did this.
When the uncle did the act with me, I felt
pain in my shushu vali jagah and also on
the back as I was caught by him tightly.
When my mother was giving me bath in the
morning then I told her about the said
incident. I have shown my mother my
shushu vali jagah and also- jha pr chhil gya
tha. Is the uncle shown to you on TV screen
is the same person who did this with you.
Victim says yes, vhi the
31. During her cross-examination, the learned Trial Court put a specific
question to the prosecutrix to ascertain whether the appellant's nail had
touched the outside or the inside of her private part. The relevant question
and answer are reproduced hereinunder:
Witness Statement in cross examination
PW- 1
…. It is wrong to suggest that no injury was
cause to me by the accused with his nail inside
my vagina . It is wrong to suggest that I am
deposing falsely.
“K”-
victim
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 15 of 26

Court Question- Apko nakhun shushu vali
jagah pr upar lga tha ya andar?
Ans. Andar lga tha.
32. Upon a careful examination of the testimony of PW-1, this Court
finds that the prosecutrix has clearly identified the appellant and attributed
an act of sexual touching to him. She pointed towards her private part while
describing the occurrence and stated that the appellant had touched her and
caused her pain. Her testimony sufficiently establishes the occurrence of
sexual contact.
33. However, the evidence concerning penetration stands on a different
footing. The prosecutrix consistently described the act in her examination-
in-chief as touching and contact with the appellant's nail. Though she
answered “ andar laga tha” to the question put by the learned Trial Court,
the said answer was in the context of identifying where the nail had touched
her. It does not clearly establish that the appellant inserted his finger or nail
into her vagina or urethra. The learned Trial Court proceeded to treat the
said answer as proof of insertion without adequately distinguishing between
contact with the private part and penetration into it.
34. This distinction assumes further significance upon examining the
previous statements of the prosecutrix. In her statement under Section 161
Cr.P.C., she referred to insertion of a finger into her private part. However,
in her statement recorded under Section 164 Cr.P.C., she described the act
as touching. During her deposition before the learned Trial Court, she again
stated that the appellant had touched her private part. The relevant portions
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 16 of 26

of her previous statements are reproduced hereunder:
Statement under Section 161 Cr.P.C.
“Q.7.
ͩकसकȧͧशकायत कर Ʌगे।
Ans. Astha
द ȣदȣ केपापा
Q.8.
Èयाͩकया बेटाआ èथा द ȣदȣ केपापाने।
Ans.
सु ǽ म Ʌ छुआथा।उँगल ȣ डाल ȣ थीमेर ȣ सु ǽ म Ʌ।
Q.9. ?
आप ͬचãलाए नह ȣं रोएनह ȣं
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 17 of 26

Ans.
म ɇने छुड़ानेकोबोलातोमुझेजानेनह ȣं देरहेथे।
मुझेमुंहपरअपनेमुँहसे ͩकसͩकया।
Q.10. ?
कब ͩकया उ Ûहɉने ऐसा
Ans. Duty
एकदो Ǒदन पहलेम àमा गईथी।म ɇ अकेले
कमरेम Ʌ खेलरह ȣ थी।तबअंकलनेमुझेगोद ȣ म Ʌ
उठाया।मेर ȣ क ÍछȤ म Ʌ हाथडालकरसुसूम Ʌ उंगल ȣ डाल ȣ।
-
ͩकसͩकया। जबम ɇने छोड़ो
मेरेमुँहपरअपनेमुँहसे
छोड़ोबोलातोजानेनह ȣं देरहेथेऔरबोले ͩक अगर
ͩकसी कोबतायातोमा Ǿंगा।
Statement under Section 164 Cr.P.C.
“Statement of witness Ms. K d/o sh. D aged about
X years, R/o as
Ques: What happened?
Ans.- He did touch my Vagina .
Ques: -Who?
Ans: - Uncle, I call him Uncle.
Ques: - Where was the touch?
Ans: - On the roof. They were saying let's go to the
terrace.
Ques: - Did do you recognize him?
Ans: - Yes.
Yesterday I was playing in room lonely. Mom had
gone on duty. Papa was making his own video.
Uncle came into the room and caught me. Took it
in lap. I got injured in my back. He kissed me on
the lips on the terrace. He said that don’t tell
someone. I talk to Mummy that Uncle was teasing
me.”
35. It is settled that a statement It is settled that statements recorded under
Sections 161 and 164 Cr.P.C. do not constitute substantive evidence. Their
use is governed by the provisions relating to contradiction and
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 18 of 26

corroboration, as applicable. The substantive evidence remains the
testimony of the prosecutrix recorded before the learned Trial Court.
Consequently, the allegation of insertion appearing in the statement under
Section 161 Cr.P.C. cannot, by itself, establish penetration where the
testimony before the Court does not sufficiently prove that ingredient.
36. This Court is conscious of the tender age of the prosecutrix and the
fact that a child cannot be expected to describe an incident of sexual assault
with anatomical precision. Nevertheless, the essential ingredient of
penetration must emerge from the evidence with sufficient certainty. In the
present case, the testimony of PW-1 establishes the act of sexual touching,
but does not establish insertion into the vagina or urethra beyond reasonable
doubt.
37. At this stage, reference may be made to the decision of the Division
Bench of this Court in Ram Preet (supra), wherein the appellant had been
convicted under Section 6 of the POCSO Act on an allegation involving
insertion of a finger into the private part of a minor child. Upon examining
the complaint, the testimony of the prosecutrix, her statement under Section
164 Cr.P.C. and the medical record, the Division Bench found that the
evidence established sexual touching but did not establish penetration.
Consequently, the conviction under Section 6 of the POCSO Act was set
aside and the conviction and sentence were modified in accordance with
the offence proved.
38. A similar distinction was drawn by a Coordinate Bench of this Court
in Jeetu Ranjeet v. State (NCT of Delhi), 2025:DHC:8851 , wherein the
prosecutrix had referred to insertion of a finger or nail in her statements
during investigation but, while deposing before the learned Trial Court, had
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 19 of 26

described the act as touching her private part. Upon reappreciation of the
oral and medical evidence, this Court held that although sexual touching
stood established, insertion of a finger had not been proved. Accordingly,
the conviction under Section 6 of the POCSO Act was modified to one
under Section 10, and the appellant was sentenced to rigorous
imprisonment for five years.
39. Reference may also be made to Hamid Khan v. State (NCT of Delhi)
2026:DHC:78 . In the said case, despite allegations of fingering and
penetration, this Court found that the evidence concerning such acts was
insufficient to establish aggravated penetrative sexual assault beyond
reasonable doubt. However, the evidence relating to the appellant fondling
the private parts of the child victim remained consistent. Consequently, the
conviction under Section 6 of the POCSO Act was altered to one under
Section 10 of the Act.
40. The aforesaid decisions establish that where the evidence proves
sexual touching but fails to establish penetration, the conviction must
correspond to the offence actually proved. Applying the same principle to
the present case, this Court finds that the act of sexual touching attributed
to the appellant stands established, whereas the additional ingredient of
penetration has not been proved beyond reasonable doubt.
41. Coming to the medical evidence, the prosecutrix was examined at
AIIMS Hospital on 24.07.2021. The medical record does not disclose any
external injury upon examination of her private part. It is also borne out
from the record that her parents declined consent for an internal
examination. Consequently, no internal examination was conducted to
ascertain whether penetration had occurred. The forensic examination also
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 20 of 26

did not yield any incriminating biological material connecting the appellant
with the alleged act.
42. The medical evidence is required to be appreciated in conjunction
with the testimony of the prosecutrix. The absence of injuries does not, by
itself, exclude penetration, nor does the absence of an internal examination
justify an adverse inference against the prosecutrix or her parents. At the
same time, the medical evidence in the present case does not provide any
finding capable of establishing the disputed act of insertion.
43. The appellant has also pointed out inconsistencies regarding the
place of occurrence. The prosecutrix referred to an empty room and the
terrace at different stages, whereas her parents referred to a room on the
upper floor or the appellant's room. These variations, however, do not
discredit her testimony concerning the act of sexual touching. The
prosecutrix identified the appellant and consistently attributed the sexual
contact to him. Considering her tender age, the discrepancies concerning
the precise location of the occurrence do not affect the essential account of
sexual assault.
44. Similarly, the delay in registration of the FIR does not render the
prosecution case doubtful. The alleged incident occurred on 21.07.2021,
the prosecutrix disclosed the same to her mother on 22.07.2021, and the
FIR was registered on 23.07.2021. In the facts and circumstances of the
present case, the said interval does not furnish a ground for rejecting the
occurrence narrated by the prosecutrix.
45. The Hon'ble Supreme Court in Phool Singh v. State of Madhya
Pradesh, (2022) 2 SCC 74 , reiterated that the testimony of a prosecutrix,
where reliable and trustworthy, may form the sole basis of conviction
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 21 of 26

without independent corroboration. The principle, however, does not
dispense with the requirement that the evidence must establish the
ingredients of the offence charged. In the present case, the testimony of
PW-1 is sufficiently reliable to establish sexual touching, but does not
establish penetrative sexual assault beyond reasonable doubt.
46. The scope of sexual assault under Section 7 of the POCSO Act was
examined by the Hon'ble Supreme Court in Attorney General for India v.
Satish, (2022) 5 SCC 545 , wherein it was held that touching the sexual part
of a child's body with sexual intent, or any other act involving physical
contact with such intent, constitutes sexual assault. The Court emphasised
that sexual intent is the material ingredient for attracting Section 7 of the
Act. Applying the said principle, the act proved against the appellant falls
within Section 7, since he touched the private part of the prosecutrix with
sexual intent.
47. It would also be appropriate to refer to Section 29 of the POCSO Act,
which provides for a rebuttable statutory presumption in respect of the
offences specified therein. Section 29 of the POCSO Act is reproduced
hereinbelow:
“29. Presumption as to certain offences .—Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3,
5, 7 and section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted
or attempted to commit the offence, as the case may
be unless the contrary is proved.”
48. In Deepak in JC v. State Govt. of NCT Delhi, 2026 INSC 1008 , the
Hon'ble Supreme Court reiterated that the statutory presumptions under
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 22 of 26

Sections 29 and 30 of the POCSO Act are not absolute. The prosecution
must first establish the foundational facts of the particular offence, and the
statutory presumption cannot be mechanically invoked to dispense with an
assessment of the evidence. In the present case, while the evidence
establishes aggravated sexual assault under Section 9(m), the foundational
facts necessary to sustain a finding of penetration under Sections 3(b) and
5(m) have not been established with the requisite certainty.
49. Upon an overall appreciation of the evidence, this Court finds that
PW-1 has clearly identified the appellant and established that he touched
her private part with sexual intent. The nature of the contact, the
circumstances surrounding the occurrence and the warning given to the
prosecutrix against disclosure sufficiently establish the requisite sexual
intent. Since the prosecutrix was below twelve years of age, the act
constitutes aggravated sexual assault under Section 9(m), punishable under
Section 10 of the POCSO Act.
50. However, the prosecution has failed to establish beyond reasonable
doubt that the appellant inserted his finger or any part thereof into the
vagina or urethra of the prosecutrix. The finding of the learned Trial Court
that the appellant committed aggravated penetrative sexual assault under
Section 5(m), punishable under Section 6 of the POCSO Act, is therefore
unsustainable. For the same reason, the conviction under Section 376AB
IPC, founded upon the allegation of finger penetration, cannot be
maintained.
51. Accordingly, the appellant is acquitted of the offences punishable
under Section 376AB IPC and Section 6 of the POCSO Act. However, his
conviction under Section 9(m), punishable under Section 10 of the POCSO
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 23 of 26

Act, is upheld. The finding under Section 9(i), insofar as it is founded upon
an allegation of injury to the sexual organs, is not necessary to sustain the
conviction under Section 10, which stands independently established under
Section 9(m).
52. The convictions under Sections 354A and 506 IPC are also
maintained. However, insofar as the offence under Section 354A IPC arises
from the same act constituting aggravated sexual assault under the POCSO
Act, the punishment shall be governed by Section 42 of the POCSO Act.
Section 42 of the POCSO Act is reproduced hereinbelow:
“42. Alternate punishment.—Where an act or
omission constitutes an offence punishable under
this Act and also under sections 166A, 354A, 354B,
354C, 354D, 370, 370A, 375, 376, [376A, 376AB,
376B, 376C, 376D, 376DA, 376DB], [376E, section
509 of the Indian Penal Code or section 67B of the
Information Technology Act, 2000 (21 of 2000)],
then, notwithstanding anything contained in any law
for the time being in force, the offender found guilty
of such offence shall be liable to punishment only
under this Act or under the Indian Penal Code as
provides for punishment which is greater in
degree.”
53. Coming to the question of sentence, the learned Trial Court
sentenced the appellant to rigorous imprisonment for five years and a fine
of Rs.10,000/- for the offence punishable under Section 10 of the POCSO
Act. The learned Trial Court further directed that all substantive sentences
would run concurrently and granted the benefit of Section 428 Cr.P.C. The
sentence awarded under Section 10 of the POCSO Act is within the
prescribed statutory limits and does not warrant interference.
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 24 of 26

CONCLUSION:
54. In view of the foregoing discussion, the present appeal is partly
allowed . The judgment of conviction dated 07.11.2023 and order on
sentence dated 15.02.2024 passed by the learned Additional Sessions
Judge-06 (POCSO), South-East District, Saket Courts, New Delhi, in
Sessions Case No. 339/2021, arising out of FIR No. 358/2021 registered at
Police Station Jaitpur, are modified to the extent indicated hereinafter.
55. The conviction of the appellant under Section 376AB IPC and
Section 6 of the POCSO Act is hereby set aside, and he is acquitted of the
said offences. Consequently, the sentence of rigorous imprisonment for
twenty years, along with the fine of Rs.10,000/- and the default sentence
imposed under Section 6 of the POCSO Act, is also set aside.
56. However, the conviction of the appellant under Section 9(m),
punishable under Section 10 of the POCSO Act, is upheld. The sentence of
rigorous imprisonment for five years, along with the fine of Rs.10,000/- and
the default sentence of simple imprisonment for one month, is maintained.
The convictions under Sections 354A and 506(1) IPC are also maintained,
subject to the provisions of Section 42 of the POCSO Act concerning
punishment for overlapping offences. The substantive sentences shall run
concurrently, with the benefit of Section 428 Cr.P.C., as directed by the
learned Trial Court.
57. As per the nominal roll available on record, the appellant had
undergone 04 years, 01 month and 17 days of actual incarceration as on
09.09.2025, besides having earned remission of 04 months and 05 days.
58. In view of the modification of the conviction and sentence, the
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 25 of 26

concerned Jail Superintendent is directed to ascertain the updated period of
incarceration undergone by the appellant, after accounting for the benefit
of Section 428 Cr.P.C., admissible remission and any period of interim bail
or suspension of sentence.
59. In the event the appellant has completed the substantive sentence
of five years rigorous imprisonment maintained by this Court, he shall
be released forthwith , subject to payment of the outstanding fine or
completion of the sentence prescribed in default thereof, and if not required
in any other case.
60. The directions concerning compensation awarded to the prosecutrix
under the impugned order on sentence shall remain undisturbed.
61. A copy of this judgment be communicated to the concerned Jail
Superintendent and the learned Trial Court for necessary information and
compliance.
62. The appeal, along with pending applications, if any, stands disposed
of in the aforesaid terms.
MADHU JAIN
(JUDGE)
OCTOBER 30, 2026/P
Signature Not Verified
Signed By:BHARTI
Signing Date:30.10.2026
17:00:46
CRL.A. 269/2024 Page 26 of 26