Conviction Under Unframed IPC Charges Set Aside; POCSO Lesser-Offence Conviction Sustained on Reliable Child Testimony
1) Introduction
In DHARMENDRA KUMAR v. THE STATE GOVT. OF NCT OF DELHI (Delhi High Court, decided on
05-01-2026), the appellant challenged his conviction arising from an allegation of sexual assault upon a
very young child (about 3 years 11 months at the time of incident). The prosecution case was that the
appellant—who was a tenant in the complainant’s house—exposed his private part and made the child touch it, and also
pressed his penis against the child’s genital area. The trial court had originally framed charges for
Section 376 IPC and Section 6 POCSO Act (penetrative sexual assault/rape), but on appreciation of
evidence convicted the appellant for a lesser POCSO offence under Section 9(m) punishable under Section 10,
and also recorded conviction under Sections 354/354A/354B IPC.
The appeal raised recurring issues in child sexual offence trials: (i) delay in FIR, (ii) competence and tutoring of a
child witness, (iii) effect of medical evidence when internal examination is refused and injuries are absent, (iv) the
threshold for invoking Section 29 POCSO Act presumption, and crucially (v) whether an accused can be convicted
under IPC provisions when no charge for those provisions was framed.
2) Summary of the Judgment
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The High Court upheld the conviction and sentence under Section 10 POCSO Act, holding that the child’s
testimony, corroborated by her mother and the surrounding circumstances, was reliable; minor variance in the child’s
Section 164 statement did not destroy the core allegation of sexual assault.
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The High Court held the FIR delay was explained by the mother waiting for the husband to return, and observed
that reporting in child sexual abuse cases is often delayed due to shame, family honour, and the accused being known.
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The High Court rejected challenges based on lack of medical injury, holding that where the proved act was non-penetrative
sexual assault/touching, absence of injury was not determinative.
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The High Court held the trial record showed the child’s deposition was recorded with sensitivity and preliminary questions
indicated competence; it found no reliable basis to infer tutoring merely because counselling occurred.
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Importantly, the High Court set aside the convictions under Sections 354/354A/354B IPC because no charge
under those IPC provisions had been framed—though it noted there was no separate sentence under those IPC sections.
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Result: the appeal was dismissed; the appellant’s POCSO conviction and sentence remained, but the additional IPC
convictions were quashed for want of charge.
3) Analysis
3.1 Precedents Cited (and Their Role)
This decision was cited by the appellant to argue that a child witness is a “dangerous witness” unless the court strictly
ensures comprehension and absence of tutoring, and that non-compliance with competency safeguards undermines fairness.
The High Court distinguished the submission on facts: it found that the child’s evidence was recorded in question-answer
form, the oath was appropriately dispensed with due to age, and preliminary questions were asked to ensure comfort and
competence. Thus, Balveer Singh operated as the appellant’s benchmark, but the High Court held the benchmark was met.
The appellant relied on this case to contend that Section 29 POCSO Act presumption cannot be invoked without first
establishing foundational facts (occurrence and identity). The High Court accepted the governing principle but held the
prosecution had indeed established the foundational facts through consistent testimony of the child and the mother and
surrounding circumstances, thereby permitting the Section 29 presumption to arise and shifting the onus to the defence.
(c) Bhanu Pratap v. State, CRL.A. 964/2017 (Delhi High Court order dated 20.08.2025)
Cited to reinforce the same proposition as Sambhubhai Raisangbhai Padhiyar—that Section 29 is not automatic and depends
on foundational facts. The High Court’s reasoning aligned with this approach: it treated Section 29 as consequential,
not substitutive of proof, and found the foundational facts proved on record.
Invoked by the appellant for the proposition that conviction on the sole testimony of the prosecutrix is permissible only
if the testimony is wholly reliable and inspires confidence. The High Court, while not quoting it at length, effectively
applied the standard by scrutinising consistency, demeanour, the child’s limited vocabulary, and corroboration by the
mother and early complaint.
Relied upon by the High Court to reiterate that conviction can rest on the sole testimony of a reliable witness; what
matters is quality and reliability, not the number of witnesses. This helped answer the defence complaint
that independent/neighbourhood witnesses were not examined.
The High Court endorsed the trial court’s reliance on Veer Singh for the settled evidentiary principle:
“evidence must be weighed and not counted.” This further supported sustaining conviction despite non-examination of
additional family members (like grandmother) or neighbours, once the primary witnesses were found credible.
3.2 Legal Reasoning (How the Court Reached the Result)
(i) Reliability of Child Testimony; “Minor Variation” vs “Material Contradiction”
A central defence plank was that the child’s Section 164 Cr.P.C. statement mentioned “insertion” (suggesting penetration),
whereas trial testimony did not, and that this was a “material improvement.” The High Court treated this as a variance
explainable by the child’s tender age and limited vocabulary, and held the “core allegation”—sexual assault by
touching/pressing and making the child touch—remained consistent across the mother’s immediate narration, the complaint,
and the child’s deposition.
The Court also gave weight to the child’s demeanour and the fact that cross-examination did not shake her on the essential
narrative. It thus refused to discard the prosecution case solely due to the Section 164 deviation, especially where the
ultimate conviction was for a lesser, non-penetrative POCSO offence.
(ii) Competency and Safeguards in Recording Child Evidence
Responding to the argument based on Section 33 POCSO Act and Section 118 of the Indian Evidence Act, the High Court held
that the record itself reflected that preliminary questions were put and that the testimony was recorded in question-answer
format with sensitivity; oath was dispensed with appropriately. Therefore, the allegation that the trial court failed to
assess competence was found incorrect on the record.
(iii) Tutoring vs Counselling
The defence argued that DCW/NGO counselling created a risk of suggestion. The High Court drew a clear conceptual line:
counselling is primarily trauma support and does not, without more, imply tutoring. Absent concrete indicators that
the child’s version was manufactured, the Court declined to infer tutoring.
(iv) Delay in FIR in Child Sexual Abuse Context
The FIR delay of two days was held explained: the mother waited for the husband to return from outstation duty and then
approached police. The High Court also made an important contextual observation: child sexual abuse reporting is often
delayed due to shame, guilt, and family honour, and because the abuser may be known.
(v) Medical Evidence and Absence of Injury
The High Court held that absence of injury and absence of internal examination (refusal of consent) did not negate the
prosecution case when the proved act was “touching/pressing” rather than penetrative assault. It treated medical evidence
as corroborative, not as a sine qua non, especially for non-penetrative sexual assault.
(vi) Section 29 POCSO Act Presumption
While acknowledging the principle that foundational facts must be proved before Section 29 can operate, the High Court
concluded those facts were proved by consistent testimony and circumstances (including the immediate disclosure to the
mother, the mother’s complaint, and the overall narrative). Consequently, it held the presumption arose and the defence
failed to rebut it with any substantiated alternative explanation.
(vii) The Key Procedural Holding: No Conviction Under Uncharged IPC Offences
The most concrete “rule” emerging from the decision is the High Court’s conclusion that the appellant could not have been
convicted under Sections 354/354A/354B IPC because no charge under those sections was framed. Even though the
trial began on charges of Section 376 IPC and Section 6 POCSO Act, and even though a lesser POCSO conviction was sustained,
the Court treated conviction for additional IPC provisions—without a framed charge—as impermissible and set them aside.
This underscores a fair-trial requirement: an accused must have clear notice of the specific IPC accusations to meet them
in defence. The High Court’s approach also signals that “lesser offence” logic may sustain a conviction within the same
statutory scheme (e.g., Section 6 to Section 10 POCSO), but separate IPC convictions require proper charge framing.
3.3 Impact
(a) On Trial Practice Under POCSO
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Child witness assessment: The decision reinforces that trial courts should visibly demonstrate competence
assessment through preliminary questions and careful recording methods; appellate courts may uphold evidence where the
record shows sensitivity and comprehension.
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Understanding variance in child statements: Courts may treat deviations between Section 164 statements and trial
testimony as non-fatal where the child is very young and the “core allegation” remains stable.
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Medical corroboration: For non-penetrative assault, lack of injuries may not be decisive; the evidentiary focus
remains on credible testimony and surrounding circumstances.
(b) On Section 29 POCSO Act Jurisprudence
The decision fits within the post-Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC 399 approach: Section 29
is powerful, but not automatic. Foundational facts must be established first; once established, the accused must rebut with a
plausible and supported defence.
(c) On Criminal Procedure: Charge Framing as a Fair-Trial Guarantee
The Court’s setting aside of the IPC convictions for want of charge is likely to influence trial courts to:
(i) frame appropriate alternative IPC charges at the outset where facts may support them,
or (ii) formally alter/add charges when evidence shifts during trial—so that convictions do not fail on this procedural ground.
4) Complex Concepts Simplified
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Section 161 vs Section 164 statements: Section 161 statements are police-recorded during investigation and are
not substantive evidence; Section 164 statements are recorded by a Magistrate and carry greater procedural assurance, but
the court still primarily decides on the basis of trial testimony tested by cross-examination.
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“Foundational facts” for Section 29 POCSO Act: Before the presumption can apply, the prosecution must first
establish basic facts like who did the act and that an offence occurred; only then does the burden shift to the accused.
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Competency of a child witness (Section 118 Evidence Act / Section 33 POCSO Act context): A child can testify if
the court is satisfied the child can understand questions and give rational answers. Courts often ask preliminary questions
(name, age, school, simple comprehension checks) and may dispense with oath for very young children.
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Why lack of injury may not matter: Many sexual offences—especially those involving touching or rubbing—may leave
no physical injury. Hence, medical evidence is supportive, not always determinative.
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Why “no charge” matters: A charge is formal notice of the exact offences alleged. Convicting for an offence not
charged can prejudice the defence because the accused may not have had a fair opportunity to contest that specific legal
accusation.
5) Conclusion
The Delhi High Court’s decision is significant for two reasons. First, it reaffirms a child-sensitive, evidence-based approach:
credible child testimony—supported by immediate disclosure and a consistent core narrative—can sustain conviction under POCSO
despite minor variations, delay in FIR, or absence of medical injury in a non-penetrative assault. Second, and more distinctly,
it clarifies the procedural boundary of criminal adjudication: IPC convictions cannot be sustained where no charge under those
IPC provisions was framed, even though a lesser POCSO conviction may validly be recorded from an originally graver POCSO charge.