Court clarifies distinction between sexual touching and penetration under POCSO Act, modifies sentence from 20 years to 5 years rigorous imprisonment with fine; emphasizes need for clear proof of penetration in child sexual offence cases
In a significant judgment dated October 30, 2026, the Delhi High Court delivered a nuanced verdict in the appeal of Vishnu Prasad, convicted for sexually assaulting a minor girl below 12 years. The appellant, originally sentenced to rigorous imprisonment of twenty years under Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act) for aggravated penetrative sexual assault, had his conviction on this count set aside. However, the court upheld his conviction for aggravated sexual assault under Section 9(m) punishable under Section 10 of the POCSO Act, which carries a lesser sentence, maintaining a rigorous imprisonment term of five years with a fine.
The case arose from an incident dated July 21, 2021, when the prosecutrix, a girl aged about five years and nine months, alleged that Vishnu Prasad, a neighbor, had sexually assaulted her by inserting his finger into her private parts. The prosecution relied heavily on the testimony of the victim, her parents, and medical evidence from AIIMS Hospital. The trial court found the accused guilty of multiple offences, including penetrative sexual assault under Section 6 of the POCSO Act and rape under Section 376AB of the Indian Penal Code (IPC).
On appeal, the Delhi High Court meticulously analyzed the evidence, particularly the victim's testimony. While the child consistently identified the accused and described an act of sexual touching with sexual intent, the court found that the evidence did not conclusively prove penetration beyond reasonable doubt. The child's statements varied between "touching" and "insertion," and medical evidence showed no external injuries or findings supporting penetration. Additionally, the child's parents had declined internal medical examination, limiting conclusive medical proof.
The Court underscored the legal distinction under the POCSO Act between "sexual assault" (physical contact with sexual intent without penetration) and "penetrative sexual assault" (involving insertion into the vagina, urethra or anus). It stressed that conviction for aggravated penetrative sexual assault (Section 6 POCSO Act) and rape under Section 376AB IPC requires clear proof of penetration. Mere testimony under Sections 161 and 164 Cr.P.C. is not substantive evidence and cannot alone establish penetration if the prosecutrix's oral testimony before the court does not support it.
Relying on precedents, including a recent Division Bench judgment in Ram Preet v. State and other coordinate bench rulings, the Court held that where sexual touching is proved but penetration is not, the conviction should be altered to one under Section 9(m) and Section 10 of the POCSO Act. The Court accordingly set aside the conviction and sentence under Sections 6 POCSO Act and 376AB IPC, acquitting the appellant on those charges.
The Court maintained the conviction under Sections 354A (sexual harassment) and 506 (criminal intimidation) of IPC, noting that where offences overlap with POCSO Act provisions, the harsher punishment under POCSO applies as per Section 42 of the Act. The sentences were ordered to run concurrently with benefit of Section 428 Cr.P.C.
The judgment also addressed minor inconsistencies in the victim's account regarding the place of occurrence and delay in FIR registration, holding these did not undermine the core evidence of sexual assault. The Court reaffirmed the principle that the testimony of a reliable and trustworthy prosecutrix can form sole basis for conviction, but the elements of the offence must be clearly established.
The Court directed the jail superintendent to verify the period of incarceration already undergone by the appellant, ordering his immediate release if the substantive sentence has been completed. Compensation orders for the victim under the Delhi Victim Compensation Scheme remain undisturbed.
This ruling is an important clarification on evidentiary standards required to establish penetrative sexual assault under POCSO Act and IPC, balancing the protection of child victims with the necessity of proof beyond reasonable doubt.
Bottom Line:
POCSO Act - Mere proof of sexual touching of private part of child with sexual intent is sufficient to constitute aggravated sexual assault under Section 9(m) punishable under Section 10 of POCSO Act, where child is below twelve years - But conviction for aggravated penetrative sexual assault under Section 6 POCSO Act and rape under Section 376AB IPC cannot be sustained unless penetration is proved beyond reasonable doubt - Statement under Sections 161 and 164 Cr.P.C. are not substantive evidence and conviction must rest on testimony before Court read with overall evidence - Where evidence proved touching but not penetration, conviction altered from Section 6 to Section 10 POCSO Act.
Statutory provision(s):
Protection of Children from Sexual Offences Act, 2012 Sections 3(b), 5(m), 6, 7, 9(m), 10, 29, 30, 42; Indian Penal Code, 1860 Sections 354A, 375(b), 376AB, 506; Code of Criminal Procedure, 1973 Sections 161, 164, 313, 374, 428, 482
Vishnu Prasad v. State of NCT of Delhi, (Delhi) : Law Finder Doc Id # 3007049
