Sudarshan v. State (2026 DHC 3061): Conviction and Sentencing Must Track the Charge in POCSO Attempt Cases
1) Introduction
In SUDARSHAN v. STATE (Delhi High Court, decided on 15.04.2026), the appellant-accused challenged his conviction arising out of FIR No. 730/2014 (PS Aman Vihar).
The prosecution alleged that on 10.07.2014 the accused, inside his shop, undressed a 4½-year-old girl (PW12), climbed on her and “poured water” on her buttocks—asserted to be semen—constituting sexual misconduct under the
Protection of Children from Sexual Offences Act, 2012 (POCSO).
The trial court framed a charge expressly describing attempt to commit aggravated sexual assault under
Section 9(m) read with Section 10, and Section 18 POCSO, but ultimately convicted under Section 9(m) read with Section 10 (i.e., as if the offence were completed) and sentenced the accused to
five years’ rigorous imprisonment.
The appeal raised three core issues: (i) the reliability of the child victim’s evidence (including tutoring and lack of injuries), (ii) whether the proved facts made out an offence under POCSO, and (iii) whether the accused could be
convicted and sentenced for the completed offence (and at the minimum punishment) when the charge was only for attempt.
2) Summary of the Judgment
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The High Court affirmed the factual finding that the accused committed sexual misconduct with the child and found the victim’s testimony credible.
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The Court held that the conduct described fits within Section 7 POCSO (“any other act with sexual intent involving physical contact without penetration”), and because the child was below 12, it would amount to
aggravated sexual assault under Section 9(m).
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However, since the accused was charged only with attempt (Section 18), and the charge was never amended, the trial court erred in convicting him for the completed aggravated sexual assault.
The conviction was therefore aligned to attempt to commit aggravated sexual assault under Section 18 read with Section 9(m), punishable under Section 10.
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On sentencing, the Court held that Section 18 limits punishment for attempt to up to one-half of the longest term prescribed for the substantive offence. Since Section 10 provides up to 7 years,
the maximum for attempt is 3½ years. The sentence was modified to 3½ years’ rigorous imprisonment (fine maintained as per the impugned order’s structure, with imprisonment corrected).
3) Analysis
A) Precedents Cited
The High Court invoked Moidu K. vs. State of Kerala for the proposition that non-compliance with
Section 232 Cr.P.C. (which requires a post-Section 313 stage consideration on whether the accused should be acquitted for lack of evidence before calling upon the defence)
does not ipso facto vitiate the trial unless the accused shows serious and substantial prejudice.
Applying that principle, the Court noted that while Section 232 compliance was “mandatory” in sequence, the accused neither pleaded nor demonstrated prejudice, and led no defence evidence.
Therefore, the omission did not undo the proceedings.
The Court relied on Ganesan v. State to address the defence attack on the child’s testimony (tutoring; lack of corroboration; lack of injuries).
The cited rule is that the sole testimony of the victim, if found credible and reliable, can be sufficient to sustain a conviction in sexual offence cases; corroboration is not a legal necessity.
On facts, the Court found PW12 consistent with her Section 164 statement and supported by the immediate disclosure to PW11 and the consistent testimony of PW9 and PW11.
The Court rejected the tutoring theory and the monetary-dispute theory, noting internal inconsistency in the defence suggestions and the absence of a coherent alternative narrative even in the Section 313 statement.
B) Legal Reasoning
i) Mapping facts to the POCSO definitions
The Court interpreted the child’s description—undressing, climbing on her, and “pouring water”—as conduct that necessarily involves
sexual intent and physical contact without penetration, falling within the residual clause of Section 7 POCSO
(“does any other act with sexual intent involving physical contact without penetration”).
Since the victim was below 12, it is “aggravated” by operation of Section 9(m), and is punishable under Section 10.
ii) The decisive procedural/substantive junction: charge of attempt vs conviction for completion
The Court’s central corrective holding is that even if evidence discloses the completed offence, a court cannot convict an accused for that completed offence where the accused was
charged only with attempt and the charge was not amended.
Here, the framed charge explicitly alleged “attempting to commit wrong act” and invoked Section 18.
Yet, the trial court convicted under Section 9(m) read with Section 10 (completion).
The High Court held this to be a legal error and realigned the conviction to what was charged: attempt.
iii) Sentencing principle for attempts under Section 18 POCSO
The Court clarified that for attempt under Section 18 POCSO, the punishment ceiling is tied to
one-half of the longest term prescribed for the substantive offence.
Because Section 10 provides a range of 5 to 7 years for completed aggravated sexual assault, the attempt sentence cannot automatically import the
minimum of 5 years.
Instead, the maximum permissible for attempt becomes 3½ years (half of 7), which made the trial court’s 5-year sentence impermissible.
C) Impact
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Charge discipline in POCSO trials: The decision underscores that courts must ensure the charge matches the conviction.
If the evidence suggests a completed offence but the charge is for attempt, the trial court must consider amending the charge (following due process) rather than convicting beyond it.
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Attempt sentencing under POCSO: The judgment provides a clear computational rule: for attempts, the sentencing court must take
half of the longest prescribed term as the upper limit; it cannot mechanically apply the substantive offence’s statutory minimum.
This is likely to influence trial courts to separately reason sentence legality in “attempt” convictions under POCSO.
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Victim testimony and corroboration: By applying Ganesan v. State, the judgment reaffirms that credible victim testimony—especially with prompt disclosure—may suffice, even where medical/physical signs are absent,
so long as the offence alleged does not necessarily require injuries.
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Procedural omissions (Section 232 Cr.P.C.): The Court’s reliance on Moidu K. vs. State of Kerala signals that appellate review will look for
demonstrable prejudice, not merely technical omission, when considering whether a trial is vitiated.
4) Complex Concepts Simplified
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Section 7 POCSO (Sexual assault): Not limited to touching specific parts; it includes “any other act” with sexual intent involving physical contact without penetration.
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Section 9(m) POCSO (Aggravation due to age): If sexual assault is committed on a child below 12, the law treats it as “aggravated,” attracting higher punishment for the completed offence.
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Section 18 POCSO (Attempt): Punishes steps taken towards committing a POCSO offence even if the offence is not completed. The maximum sentence is
one-half of the longest term provided for the completed offence.
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Charge vs conviction: A “charge” is the formal accusation the accused must meet at trial. Convicting for an offence materially different from what was charged—without amending the charge—can be legally impermissible because it
compromises fair notice and defence opportunity.
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Section 164 Cr.P.C. statement: A statement recorded by a magistrate during investigation; often used to assess early consistency, especially in sensitive cases.
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Section 232 Cr.P.C. (post-313 stage): After the accused is examined, the court must consider whether there is “no evidence” to warrant conviction and acquit if so; omission is not automatically fatal unless prejudice is shown.
5) Conclusion
Sudarshan v. State (2026 DHC 3061) delivers a precise procedural-substantive clarification in POCSO adjudication:
even where the evidence would make out aggravated sexual assault, a conviction must not exceed the offence actually charged unless the charge is duly amended.
Equally, in an attempt conviction under Section 18 POCSO, sentencing must respect the statutory limit of
one-half of the longest term for the substantive offence—rendering a 5-year sentence impermissible where the maximum for attempt computes to 3½ years.
The judgment thus strengthens trial accuracy in (i) charge framing and amendment practice, and (ii) lawful sentencing methodology for attempts, while reaffirming that credible child-victim testimony can be sufficient to sustain guilt.