This judgment does not acquit the appellant: the aggravated sexual assault conviction and five-year term stand. It does not decide any other case against him, does not disturb the compensation directions, and leaves his actual release date to the jail authorities' recomputation of time already served.
- Case
- Vishnu Prasad v. State of NCT of Delhi
- Court
- High Court of Delhi
- Decision
- Bench
- Madhu Jain J.
- Judgment by
- Madhu Jain J.
- Case numbers
- CRL.A. 269/2024
- Outcome
- Judgment partly allowing a criminal appeal under Section 374 read with Section 482 of the Code of Criminal Procedure; the trial court's conviction and sentence are modified, not set aside in full.
Partly allowed: penetrative-assault conviction goes, sexual-assault conviction stays
On 30 October 2026, the High Court of Delhi partly allowed Vishnu Prasad's appeal in a POCSO case, setting aside his conviction for aggravated penetrative sexual assault and for rape of a child below twelve, while upholding his conviction for aggravated sexual assault.
Justice Madhu Jain held that the evidence proved sexual touching of a child below twelve with sexual intent, but not penetration beyond reasonable doubt, so the conviction had to match the offence proved. The five-year term for aggravated sexual assault was maintained; the twenty-year term for aggravated penetrative sexual assault was set aside.
Trial conviction and sentence
The appeal, CRL.A. 269/2024, challenged the judgment of conviction dated 7 November 2023 and the order on sentence dated 15 February 2024 passed by the Additional Sessions Judge-06 (POCSO), Saket Courts, arising from FIR No. 358/2021 registered at Police Station Jaitpur. The trial court had convicted the appellant under Sections 376AB, 354A and 506 of the Indian Penal Code and Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012.
It sentenced him to rigorous imprisonment for twenty years with a fine of Rs. 10,000 under Section 6 of the POCSO Act, rigorous imprisonment for five years with a fine of Rs. 10,000 under Section 10, three years' rigorous imprisonment under Section 354A, and one year's simple imprisonment under Section 506(1), all concurrent, with Section 428 benefit.
The prosecution case was that on 21 July 2021 the appellant, a neighbour, sexually assaulted the child; the complaint alleged that he had inserted his finger into her private part and threatened to beat her if she disclosed it, and the child told her mother the next day, while being bathed, about the incident. The complaint was lodged on 23 July 2021; the child was medically examined at AIIMS Hospital on 24 July 2021 and her statement under Section 164 of the Code of Criminal Procedure was recorded the same day.
The question before the Court
The Court framed one principal question: whether the prosecution had established aggravated penetrative sexual assault upon the prosecutrix, or whether the evidence proved aggravated sexual assault without penetration. Everything turned on that distinction, because the two offences carry very different punishments.
Two offences, separated by penetration
Under Section 3(b) of the POCSO Act, penetrative sexual assault includes insertion, to any extent, of any object or body part other than the penis into the vagina, urethra or anus of a child. Where the child is below twelve, Section 5(m) makes it aggravated penetrative sexual assault, punishable under Section 6. Section 7, by contrast, covers sexual assault involving physical contact with sexual intent without penetration; against a child below twelve, Section 9(m) makes it aggravated sexual assault, punishable under Section 10.
The same ingredient matters for Section 376AB of the IPC, which punishes rape of a woman under twelve: because the allegation here was penetration by a finger, covered by Section 375(b), proof of penetration was also essential to that conviction. Where the same act is punishable under both the POCSO Act and the IPC, Section 42 of the POCSO Act provides for alternate punishment under the graver provision, not under both.
Why penetration failed but touching stood proved
Her age was undisputed — she was below twelve on the date of the incident — so the controversy centred only on the precise nature of the act. Her testimony as PW-1 clearly identified the appellant and established sexual touching, but on penetration it stood on a different footing. In her examination-in-chief she consistently described touching and contact with the appellant's nail; her answer that something had touched inside was given in the context of identifying where the nail had touched, and did not clearly establish insertion into the vagina or urethra. The trial court had treated that answer as proof of insertion without distinguishing contact from penetration.
The earlier statements could not fill the gap: the statement under Section 161 of the Code of Criminal Procedure referred to insertion of a finger, while the statement under Section 164 and the deposition before the trial court described touching. Statements under Sections 161 and 164 do not constitute substantive evidence; the substantive evidence remains the testimony before the trial court. A young child cannot be expected to describe an incident with anatomical precision, the Court noted, but penetration must still emerge with sufficient certainty. Three earlier Delhi High Court decisions drew the same line — Ram Preet, Jeetu Ranjeet v. State (NCT of Delhi), 2025:DHC:8851, and Hamid Khan v. State (NCT of Delhi), 2026:DHC:78 — each altering a Section 6 conviction to Section 10 on that basis.
The medical evidence did not supply the missing ingredient either. The AIIMS record disclosed no external injury, no internal examination was conducted because consent was declined, and the forensic examination yielded no incriminating biological material connecting the appellant with the act. Place variations and the short incident–disclosure–FIR intervals did not discredit the testimony about touching.
Finally, the Court addressed sexual intent and the statutory presumption. Touching a child's sexual part with sexual intent constitutes sexual assault under Section 7, following Attorney General for India v. Satish, (2022) 5 SCC 545, and the contact, circumstances and warning against disclosure established that intent here. Section 29 of the POCSO Act creates a rebuttable presumption for the listed offences, but, as the Supreme Court reiterated in Deepak in JC v. State Govt. of NCT Delhi, 2026 INSC 1008, the presumption is not absolute: the prosecution must first establish the foundational facts of the particular offence. Here those facts were established for aggravated sexual assault, but not for penetration.
Appeal partly allowed; release left to recomputation
The appeal was therefore partly allowed and the trial court's judgment and sentence were modified. The conviction under Section 376AB of the IPC and Section 6 of the POCSO Act was set aside and the appellant acquitted of those offences, with the twenty-year rigorous imprisonment term and its fine and default sentence also set aside. The conviction under Section 9(m), punishable under Section 10, was upheld, and the five-year rigorous imprisonment term with a fine of Rs. 10,000 and one month's simple imprisonment in default was maintained. The convictions under Sections 354A and 506(1) were also maintained, subject to Section 42 on punishment for overlapping offences, with substantive sentences concurrent and the benefit of Section 428.
On the record, the appellant had undergone four years, one month and seventeen days of actual incarceration as on 9 September 2025, besides remission of four months and five days. The Jail Superintendent was directed to ascertain the updated period undergone; if the five-year sentence stood completed, he was to be released forthwith, subject to the outstanding fine or default sentence, and if not required in any other case. The compensation directions were left undisturbed.
BANTHRY ANALYSISFor law students: conviction follows the ingredient proved
This judgment illustrates ingredient-matching in appellate review. An appellate court does not only affirm or reverse: where the evidence proves a lesser cognate offence, it can reframe the conviction to the offence made out, and the sentence follows the reframed offence. The trial court's error, on this reading, was not disbelieving the child but treating contact as penetration without evidence bridging that gap. It also shows Section 29's presumption's limits — it helps the prosecution once the charged offence's foundational facts are in place, but does not manufacture a missing ingredient.
READING PROMPTSQuestions for a closer reading
- Why did the Court set aside the Section 6 POCSO conviction while upholding the Section 10 conviction?
- How did the Court treat the differences between the child's statements under Sections 161 and 164 of the Code of Criminal Procedure and her deposition before the trial court?
- What work does Section 42 of the POCSO Act do where the same act is punishable under both the POCSO Act and the IPC?
