Proof of sexual touching is not proof of penetration, and the Delhi High Court has acted on that distinction: it has set aside a man’s conviction for aggravated penetrative sexual assault and the accompanying 20-year sentence, holding that penetration was not proved beyond reasonable doubt. The conviction for aggravated sexual assault and the five-year sentence stand, and the child’s compensation is left undisturbed.
New Delhi: In a POCSO appeal decided on October 30, 2026, the Delhi High Court has held that a conviction must correspond to the sexual offence the evidence actually establishes. Justice Madhu Jain partly allowed the appeal [Vishnu Prasad v. State of NCT of Delhi].
The appellant stands acquitted of the offences under Section 376AB of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. His conviction under Section 9(m), punishable under Section 10 of the POCSO Act, is upheld, as are the convictions for sexual harassment and criminal intimidation, subject to the statutory rule governing punishment for overlapping offences.
Where the testimony stopped short
The Court found, in paragraphs 32 to 36, that the child had identified the appellant and reliably described sexual touching. Her answer to a trial-court question about contact with his nail, however, did not clearly establish insertion, it held. The trial court had read that answer as proof of penetration without adequately separating the two.
A young child cannot be expected to describe an assault with anatomical precision, the High Court acknowledged. Even so, the particular ingredient of penetration had to be established beyond reasonable doubt, and an allegation in a police statement could not, by itself, fill a gap in the substantive testimony recorded at trial.
Variations about the precise place of occurrence did not, in the Court’s view, discredit the child’s account of sexual contact. Nor did the interval before registration of the FIR justify rejecting it.
The challenge to the 2023 conviction
The appeal was directed against a November 2023 conviction and the February 2024 sentencing order. Among other sentences, the trial court had imposed 20 years of rigorous imprisonment under Section 6 and five years under Section 10 of the POCSO Act, with the substantive sentences to run concurrently.
The appellant argued that the child’s accounts did not consistently establish penetration and that the medical and forensic material did not support the allegation. The State defended the conviction, relying on the child’s testimony and the other prosecution evidence. The child’s age, below twelve years, was established and not disputed.
The medical record and the limits of the POCSO presumptions
On the medical evidence, in paragraphs 41 and 42, the Court cautioned expressly that the absence of injuries does not, by itself, exclude penetration. The parents’ refusal to consent to an internal examination, it added, could not justify an adverse inference against them or the child. On this record, though, the medical evidence did not establish the disputed act of insertion.
Reliable testimony may support a conviction without independent corroboration, the Court explained in paragraphs 45 to 48, but it must still establish the ingredients of the offence charged. Referring to Deepak in JC v. State Govt. of NCT Delhi, 2026 INSC 1008, it reiterated that the POCSO presumptions cannot replace proof of the necessary foundational facts.
Operative directions: five years remain, release only after verification
Paragraphs 54 to 60 contain the operative directions. The 20-year sentence under Section 6 is set aside, while five years of rigorous imprisonment and a Rs 10,000 fine under Section 10 are retained, along with the one-month default sentence for non-payment of that fine. The surviving substantive sentences run concurrently, with credit for detention under Section 428 Cr.P.C.
The Jail Superintendent must work out the updated custody period, including applicable remission and any period of interim bail or suspension of sentence. Release was directed only if the five-year substantive sentence has been completed, subject to payment of the outstanding fine or completion of the default sentence, and provided the appellant is not required in another case. The compensation directions in favour of the child remain unchanged.
Case Title: Vishnu Prasad v. State of NCT of Delhi
Case Number: CRL.A. 269/2024; CNR No. DLHC010154512024
Court: Delhi High Court
Bench: Justice Madhu Jain
Date of Judgment and Upload: October 30, 2026
Status: Criminal appeal partly allowed; penetrative-offence convictions set aside, aggravated sexual-assault conviction and five-year sentence retained.