CASE NAME: Dharmendra Kumar Vs The State Govt. of Nct of Delhi
CASE NUMBER: CRL.A. 51/2025
COURT: High Court of New Delhi
DATE: 05th January, 2026
QUORUM: Hon’ble Ms Justice Neena Bansal Krishna
FACTS
The appeal is filed under Section 415(2) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the judgment of conviction passed on 09.07.2024, and the order passed on 21.08.2024 by the learned Additional Sessions Judge. The Appellant is convicted for the offence under Section 9(m) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012, and Sections 354, 354A, 354B IPC.
The incident reportedly took place on 17.06.2022, in which the victim, who was about 3 years and 11 months old at the time, was left at her grandmother’s house. Later, the child went back to her residence to use the toilet, where the offender, a tenant living in the same building, reportedly removed his clothing, showing his private parts, and the victim was forced to touch them. Reportedly, the victim told her mother about what happened, which led to the registration of the FIR on 19.06.2022, after the return of the victim’s father.
The victim and her mother gave their statements as witnesses to justify the case presented before the prosecution. The medical examination resulted in no external injuries being found, and there was no internal examination either as there was no consent. After appreciating the evidence, the Trial Court held the Appellant guilty of the lesser offence as defined by Section 10 of the POCSO Act and as stated above, IPC sections.
ISSUES
- Whether the testimony of the child witness below the age of four years is reliable and admissible in courts.
- Whether contradictions between the Statement under Section 161 Cr.P.C. and Statement under Section 164 Cr.P.C rendered the prosecution case doubtful.
- Whether the delay in filing the FIR and the lack of any medical evidence had weakened the case for prosecution.
- Whether the presumption under Section 29 of the POCSO Act is correctly invoked.
- Whether conviction under Sections 354/354A/354B IPC was sustainable without framing charges.
LEGAL PROVISIONS
- Section 9(m) & Section 10, POCSO Act, 2012 – Aggravated sexual assault and punishment
- Section 29, POCSO Act – Statutory presumption
- Section 33, POCSO Act – Child-friendly trial and competency
- Sections 354/354A/354B IPC – Outraging modesty
- Sections 161, 164, 313 & 428 Cr.P.C.
- Section 118, Indian Evidence Act
ARGUMENTS OF THE PETITIONER (APPELLANT)
The Appellant relied upon the fact that there were discrepancies within the statements of the child, especially with respect to the act of penetration, which was mentioned only in the statement under Section 164. It was also highlighted that a child of so tender an age could not have returned home alone, which made it unbelievable. The FIR was registered after a delay of two days, which was unexplained, leaving scope for fabrication.
Further, it was alleged that the Trial Court failed to determine the competency of the child witness as mandated under Section 33 of the POCSO Act and Section 118 of the Evidence Act. Lack of medical proof, failure to examine the grandmother (the first receiver of the secrets), and unavailability of independent witnesses were also pointed out. The Appellant claimed false implication due to rent disputes and alleged illicit relations of the victim’s mother.
ARGUMENTS OF THE RESPONDENT (STATE)
The State argued that it was satisfied that since the minor’s statements were consistent in essential details and were completely in accordance with her statements and initial allegation, minor discrepancies could be accounted for by her tender age and vocabulary limitations. The delay in filing the FIR was satisfactorily explained by social stigma and waiting for her father.
The State presented that medical confirmation is not required, particularly when the crime is for sexual touching without penetration. After establishing foundational facts, the statutory presumption under Section 29 POCSO Act was properly applied. The defence under “false implication” was ambiguous, unauthenticated, and not placed before any prosecution witnesses.
ANALYSIS
The Court emphasized the tender age of the victim and held that minor inconsistencies in the testimony of a child are not fatal if the core allegation remains. Her statement, recorded in a question-and-answer format befitting a child, under Sections 33 of POCSO and 118 of the Evidence Act, was held to meet competency tests. Allegations of tutoring were rejected, as DCW counselling is only emotional support. The two-day delay in the FIR was reasonably explained, considering stigma, family honour, and that the accused was a known person. Absence of medical injuries was inconsequential for aggravated sexual assault that covers sexual touching. Once the foundational facts had been proved by reliable oral evidence, Section 29 POCSO presumption was rightly invoked, which the appellant failed to rebut. However, the convictions under the IPC were set aside on account of non-framing of charges, but the conviction under the POCSO was maintained.
JUDGMENT
The Court affirmed the conviction under Section 10 of the POCSO Act, as there were credibility, consistency, and corroboration of statements made by the victim as well as her mother, with due process followed during the trial. The convictions under IPC for Sections 354, 354-A, and 354 were set aside as no charges or sentences were imposed.
CONCLUSION
Appeal was partly allowed. Conviction of the Appellant for an offence under Section 10 POCSO Act is confirmed, while the convictions for offences under IPC are set aside. All other appeals are dismissed based on complaints regarding inconsistencies, delay in the filing of the FIR, a lack of supporting medical testimony, as well as tutoring. The Appellant was rightfully convicted of aggravated sexual assault of the minor child.
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WRITTEN BY: USIKA K
