CRL.A. 51/2025 Page 1 of 19

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 04

th

November, 2025

Pronounced on: 05

th

January, 2026

+ CRL.A. 51/2025, CRL.M.A. 1185/2025 & CRL.M.(BAIL) 96/2025

DHARMENDRA KUMAR

S/o Late Shri Ram Kumar,

R/o Village Sariya Kanpur Nagar,

Shringar, Uttar Pradesh.

(Presently confined in Central Jail No. 4,

Tihar, New Delhi) .....Appellant

Through: Mr. Prateek Kumar, Ms. Ankita,

Mr. Prassant Kumar Sharma and

Mr. Chetan Charitra, Advocates.

versus

THE STATE GOVT. OF NCT OF DELHI

Through the SHO

Police Station Budh Vihar, New Delhi. .....Respondent

Through: Mr. Utkarsh, APP for the State.

Ms. Tanya Agarwal (DHCLSC) and

Mr. Krishna Kumar Keshav,

Advocates for Complainant.

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. Appeal under Section 415(2) read with Section 528 of Bhartiya

Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as „BNSS‟) has been

filed against the Judgment of Conviction dated 09.07.2024 and Order on

Sentence dated 21.08.2024 passed by learned ASJ, whereby the Appellant

has been held guilty of offence under Section 9(m) punishable under Section

CRL.A. 51/2025 Page 2 of 19

10 of the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as „POCSO Act‟) and Section 354 of the Indian

Penal Code (hereinafter referred to as „IPC‟).

2. Briefly stated, on 19.06.2022, DD No.35A was recorded an

information about sexual assault, which was marked to IO/SI Bimlesh.

Victim along with her mother was taken to BSA Hospital by Ct. Pooja,

where victim was medically examined. After medical examination, Ct.

Pooja brought the victim and her mother to the Police Station, where the

statement of Victim‟s Mother was recorded, who alleged that on 17.06.2022

at about 02-03:00 PM, the Appellant, who was tenant in their house, had

flashed his private part and made the victim touch it.

3. Statement of the Victim was also recorded under Section 164

Cr.P.C. wherein she gave the similar statement.

4. After completion of investigation, Chargesheet was filed in the court.

Charges under Section 376 IPC and Section 6 POCSO Act were framed

against the Appellant on 03.09.2022, to which he pleaded not guilty.

5. The State examined 6 Prosecution Witnesses. PW-1 victim „G‟ and

PW-2 her mother „L‟ deposed about the incident as stated in the Complaint

Ex.PW2/A.

6. PW-3/W Ct. Pooja took the victim „G‟ and her mother at BSA

Hospital for her medical examination, vide MLC No. 2990/22, Ex.PW3/A.

7. PW-4/Dr. Chingbiaklun Shoute conducted the general examination

of victim „G‟, however the mother and aunty of the patient refused for her

internal examination.

CRL.A. 51/2025 Page 3 of 19

8. PW-6/SI Bimlesh, IO called the NGO counselor and got conducted

the counseling of the victim „G‟ and her mother „L‟ from the NGO

counselor. After going through the MLC, she recorded the

statement/complaint of mother of the victim „L‟ already, Ex.PW2/A and

made endorsement on the statement and prepared the rukka, Ex.PW6/A.

Thereafter, PW-6 along with PW-5 Ct Praveen, victim and her mother went

to the place of incident where PW-6 prepared the Site Plan, Ex.PW6/B. The

statement of victim „G‟ under Section 161 Cr.P.C. was also recorded.

9. The accused Dharmender was arrested and his personal Search Memo

was conducted vide Memo, Ex.PW5/A. The disclosure statement of

accused was recorded vide Ex.PW6/C.

10. Statement of the Appellant was recorded under Section 313 Cr.P.C.,

where he denied all the incriminating evidence against him.

11. Appellant was held guilty and convicted by the learned ASJ vide

Judgment dated 09.07.2024 for the offences under Section 9(m)

punishable under Section 10 of POCSO Act and Sections

354/354A/354B of IPC. The Appellant vide Order on Sentence dated

21.08.2024, was sentenced to undergo RI for 07 years under Section 10 of

POCSO Act and with fine of Rs.50,000/- in default of payment of fine SI for

06 months; and RI for 05 years for offence punishable under Section 354 of

IPC with fine of Rs.30,000/-, in default payment of fine SI for 03 months.

All the sentences were directed to run concurrently and the benefit of

Section 428 of Cr.P.C. was given.

12. Aggrieved by the aforesaid Judgment of conviction dated 09.07.2024

and Order on sentence dated 21.08.2024, the Appellant has filed present

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Appeal, challenging it on the ground that there was no incriminating

evidence against him for any offence and he was innocent. There are

material contradictions in the testimony of the victim and her mother, which

cast doubt about truthfulness of Prosecution‟s case.

13. Moreover, testimony of the PW-1/Victim „G‟ was contradictory to her

statement under Section 164 Cr.P.C. In fact, Victim‟s mother was in an

illicit relationship with some other person and she was caught red-handed by

the Appellant, on account of which some disputes arose inter se them.

Therefore, she implicated the Appellant falsely in this case.

14. It has not been appreciated that the victim G, who was barely 3 years

11 months old, was left by her mother at the house of grandmother, from

where victim came back to her home, on her own. Statement of the victim

that she returned to her home on her own, cannot be believed. Complainant,

who is the mother of victim, has not disclosed that her son, was also present

at the time of alleged incident. Tutoring of the victim by her mother or

someone else, cannot be ruled out.

15. Furthermore, there were many other witnesses involved in the present

case, but apart from the victim and her mother, no other witness has been

examined by the Prosecution.

16. The impugned Judgment and Order is based on conjectures and

surmises. It has not been appreciated that when on the evidence adduced two

views were possible, the one which is favorable to the accused should be

adopted.

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17. It is therefore submitted that the impugned Judgment of conviction

dated 09.07.2024 and Order on sentence dated 21.08.2024 be set aside and

Appellant be acquitted.

18. Status Report has been filed on behalf of the State wherein entire

facts, forming the part of the Chargesheet, have been reiterated.

19. The Appellant has filed Written Submissions which are essentially

in line with the grounds taken in the Appeal.

20. It has been submitted that there was a delay in registration of FIR, as

the incident happened on 17.06.2022, while the FIR was lodged after two

days, on 19.06.2022. Victim‟s Mother has deposed that while her Daughter

(Victim) had narrated the incident to her on the same day, her Husband has

approached the Police Station, two days later. This delay has remained un-

explained, raising doubt about the spontaneity and genuineness of the

Prosecution‟s version. This un-explained delay in lodging the FIR affords

scope for fabrication and embellishment, as has been held by the Supreme

Court in numerous Judgments. Delay without justification, has rendered the

Prosecution‟s version doubtful.

21. It is further submitted that the victim was 03 years and 11 months old

at the time of recording her testimony. Section 33 POCSO Act requires that

the Court ensure child competence and safeguard against prejudice to the

accused and that procedural lapses cannot be cured by presumption.

Section 33(2) of the POCSO Act and Section 118 of the Indian Evidence

Act, had not been complied with by the learned Trial Court. There is no

satisfaction recorded that the child understood the duty of speaking the truth.

CRL.A. 51/2025 Page 6 of 19

No preliminary questions were recorded nor was there any endorsement

about the Court‟s satisfaction regarding the child‟s ability to depose.

22. Reliance has been placed on State of M.P. vs. Balveer Singh, 2025

SCC OnLine SC 390, wherein the Hon‟ble Supreme Court observed that a

child witness is a “dangerous witness”, unless the Court ensures

comprehension and absence of tutoring.

23. It has been further contended that victim’s grandmother, who was

the first recipient of disclosure, was not examined. Her absence deprives

the Court of the earliest spontaneous version.

24. Victim‟s statement under Section 161 Cr.P.C. mentions only

“touching”, whereas in her statement under Section 164 Cr.P.C., she

introduced “insertion” which amounts to material improvement and renders

the testimony of the victim, unbelievable. Her mother admitted that DCW

Counsellors interacted extensively with the child, creating a real possibility

of suggestive tutoring. The conclusion of Ld. ASJ that such contradictions

were “minor”, reflects non-application of the judicial mind, especially when

the case rests solely on oral testimony.

25. The MLC Ex. PW-4/A records that no injury was found on the

private parts of the child Victim and internal examination was not conducted

as the mother did not give consent for the same. The absence of medical

corroboration assumes significance especially where the allegation

involves aggravated assault. Medical evidence does not support the ocular

version; when two views are possible, the one favouring the accused must

be adopted. The Prosecution has failed to produce cogent medical or

forensic corroboration creating a reasonable doubt of the prosecution story.

CRL.A. 51/2025 Page 7 of 19

26. It is argued that the Prosecution has failed to prove either penetration

or aggravated sexual contact through reliable evidence. Therefore, no

presumption could lawfully arise, to shift the burden to the Appellant.

27. It is next contended that statutory presumption under Section 29 of

the POCSO Act, without first establishing the foundational facts of the

occurrence and identity of the perpetrator, has been erroneously

invoked by the learned Trial Court. Reliance in placed on the case of

Sambhubhai Raisangbhai Padhiyar vs. State of Gujarat, (2025) 2 SCC 399,

wherein the Supreme Court held that Section 29 POCSO Act is available

only where the foundational facts exist for commission of offence under

Section 5 of the POCSO Act. This Court vide Order dated 20.08.2025 in the

case of Bhanu Pratap vs. State, CRL.A. 964/2017, has observed to similar

effect.

28. It is submitted that there is no independent or circumstantial

corroboration despite the place of occurrence being easily accessible. No

CCTV footage was collected, despite the fact that incident occurred in

residential settings. No independent witnesses from the neighborhood

have been examined.

29. Reliance is placed on Raja vs. State of Karnataka, (2016) 10 SCC

506, where it was observed that the conviction on the sole testimony of the

prosecutrix is permissible only when such testimony is wholly reliable,

inspires confidence and is free from inconsistencies or improbabilities. The

present case, falls short of this standard.

30. The Appellant has consistently maintained from Bail stage onwards,

that he has been falsely implicated as he had the knowledge of the

CRL.A. 51/2025 Page 8 of 19

Complainant‟s Mother having relationship with the third person and also

because the Appellant had demanded arrears of rent; circumstances which

provide a clear motive for false implication.

31. The defense of the Appellant supported by the absence of medical

corroboration and by contradictions in prosecution evidence, creates a

reasonable doubt in favour of the Appellant. It is asserted that there is

presumption of innocence in favour of the Accused unless he is proven

guilty beyond reasonable doubt. The Prosecution has to stand on its own

legs; even a grave suspicion cannot take the place of proof. Therefore, the

Appellant is entitled to benefit of doubt.

32. In the end, it is stated that the cumulative effect of the delay,

contradictions, absence of medical proof, non-examination of crucial

witnesses and procedural irregularities, establish the innocence of the

Appellant. It is therefore, submitted that the impugned Judgment of

Conviction dated 09.07.2024 and Order on Sentence dated 21.08.2024

passed by learned Additional Session Judge, be set aside.

Submissions heard and record perused.

33. The Appellant was initially charged for offences under Section 6

POCSO Act and Section 376 IPC. Upon conclusion of trial, the learned

Trial Court convicted the Appellant for the lesser offence of sexual

harassment under Section 9(m) punishable under Section 10 POCSO Act

and also under Sections 354/354A/354B IPC.

34. The first material witness examined by the Prosecution to prove the

charges is PW-2 “L”, mother of victim. She deposed that she along with her

family, was residing at the given address. She had two minor children, one

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boy, aged 10 years and one girl „G @ L‟ (victim), who was aged 03 years

and 11 months at the time of incident. They had two rooms and one shop on

the ground floor and four rooms on the first floor of their house. She had

given two rooms of first floor on rent and other two rooms were in her

possession, in which she along with her family was residing.

35. PW-2 deposed that on 17.06.2022, she went to Ambedkar Hospital for

getting her Tests done and left her Daughter „G‟ / Victim with her mother-

in-law, who resides three houses away from her house. At about 03:00 PM,

when she returned home, her daughter informed her that she wanted to go to

the bathroom and therefore, had come back to her house from the house of

Dadi. She met Dharmendra Chacha, the Appellant, who pulled down her

„kachi‟ and thereafter, he removed his own „kacha‟ and thereafter, he made

her lie next to him and kept his „shu-shu‟ (penis) on her „shu-shu wali

jagah‟ and thereafter, he shook his penis. Thereafter, when she went to the

toilet, the Appellant did „chedkhani‟ and touched her „shu-shu wali jagah‟.

She narrated this entire incident in the presence of Appellant, who

immediately refuted her statement and claimed that he had not done any

such thing. At that time Appellant was under the influence of „nasha‟ and he

ran away. She narrated this incident to her mother-in-law, who told her that

she should wait for her husband to return, who, being a driver at private taxi,

had gone to Dehradun, Uttarakhand. The husband returned on 19.06.2022,

to whom she narrated the entire incident and thereafter, they called the PCR

at No.100. Police came and took them to the Police Station. First, they

narrated the incident to 100 Number wali Police. However, the Appellant

was at the Police Station even before they reached there. The Statement of

CRL.A. 51/2025 Page 10 of 19

the victim‟s mother Ex.PW-2/A was recorded, on which she signed at point

„A‟. She was accompanied to the Police Station by her daughter, husband,

mother-in-law and her own parents. Police recorded the statement of Victim

„G‟ and arrested the Appellant even before they reached the Police Station,

vide Arrest Memo Ex.PW-2/B. She further deposed that for the last 2-3

days, the Appellant, under the influence of liquor, used to remain in his

room and did not go out even for food. She stated that had she been aware

that he would not go for work on that day, she should not have left her

daughter alone.

36. The witness PW-2 “L”, mother of victim clarified in the cross-

examination that the Appellant had been her tenant for about 03 years before

the lock-down. He was inducted as tenant by her father-in-law, as he was the

owner of their house. She explained that the Appellant along with one Amit,

used to stay in a room on the first floor and one Shiva used to reside in the

second room on the first floor. PW-2 and her family was also residing on the

first floor in the other two rooms. She admitted that before the day of

incident, the Appellant had never misbehaved with her daughter. She also

admitted that she used to at times give food to the Appellant and his room

partner. She got to know that he was distantly related to them and she never

took him as a tenant and shared family relationships with him. Whenever

she fell sick, he would cook food and give it to her. She. They used to even

interact when the husband of PW-2 was not in the house.

37. Pertinently, she stated in her cross-examination that once or twice, she

had left her daughter alone at the house, but at that time the Appellant was

not present. Furthermore, she never left her daughter alone when the

CRL.A. 51/2025 Page 11 of 19

accused was present in the house. She also admitted that for about 2-3 days,

the accused had been in his room under the influence of nasha. She also

admitted that when she saw him on that day, she got scared by looking at his

face. She also admitted that there was a toilet in the house of her mother-in-

law, but the child preferred to come back home for going to do toilet.

38. PW-2, the Mother has further clarified that her Daughter / Victim „G‟

did not narrate the incident either to her grand-mother or the grand-father.

She volunteered that the daughter did not narrate the incident immediately

on reaching home, but it is only after seeing the Appellant, that she told her

about the entire incident.

39. The star witness of the Prosecution is the PW-1/Victim „G‟ who

deposed as under:

“Ye Dharmender hai.

Q: Isne aapke saath kya kiya tha?

A: Insne meri puch par apni puch lagai thi.

Q: Beta aapki puch kaha hai?

A: witness ne khade hokar apne vaginal area ko point karke

bataya ki ye meri puch hal.

Q: Beta Dharmender uncle ki puch kaha thi?

A: Dharmender uncle ki puch Dharmender uncle ke paas

hai

Q: Beta unki puch unki body me kaha hai?

A: aage hai jaha par meri puch hai

Q: Beta Dharmender uncle ne aur kya kiya tha?

A: Dharmender uncle ne toilet me lejakar apni puch meri

puch par lagai thi, meri kacchi utaar kar lagai thi. Main

ro rahi thi, maine rote rote ye baat mummy ko batai thi,

tab wo bhaag gaya tha.

…

Main apne ghar toilet kame ke liye Dadi ke ghar se akeli

aayi thi. Meri Dadi mere saath nahi aayi thi. Jab main apne

CRL.A. 51/2025 Page 12 of 19

ghar toilet ke liye aayi thi tab mummy ghar par nahi thi kahi

bahar gai thi. Mummy ne ye baat papa ko batai thi fir papa

khud police station pahunch gaye.

Q: Papa ussi din police station gaye the ya baad me gaye

the?

A: Baad me gaye the.

Q: Jiss din ye ghatna hui thi uske kitne din baad papa gaye

the police station?

A: Usi din gaye the.”

40. In her cross-examination, she corroborated the testimony of her

mother that she had alone come back from her Dadi‟s house for toilet and

her Mother was not at home at that time as she had gone out somewhere.

Subsequently, her Mother had narrated the incident to the Father.

41. Pertinently, in her statement under Section 164 Cr.P.C., Ex.PW-1/A,

the Prosecutrix has stated that the Appellant had removed her clothes and

thereafter, inserted his „shu-shu‟ (penis) into her „su-su‟, about which she

had told her Mother and the Appellant was apprehended.

42. The first aspect which emerges is that the testimony of the Child has

been consistent in her testimony as PW-1 and also with the testimony of

PW-2, her Mother, who had narrated this entire incident as told to her by the

Daughter, on which the Complaint, Ex.PW-2/A was recorded, on which, the

FIR was registered.

43. The first contention of the Appellant is that there are material

contradictions and improvements in the statement of the victim and the

Mother. It was argued that it is highly unlikely that a child of less than 4

years, would return home alone from the house of the grandmother.

However, merely because the child decided to return to her house which was

close by, cannot be a circumstance which is totally unbelievable. The

CRL.A. 51/2025 Page 13 of 19

contention that the small child could not have come back alone from her

grandmother‟s house is equally misplaced, as her house was barely four-five

houses away from the victim‟s own house.

44. It needs to be appreciated that PW-1 was consistent in deposing that

she never left her daughter alone in the house if the Appellant was also

present. Moreover, she was not aware that he was at home, on that day.

Also, he was in a state of “nasha,” as per the testimony of PW-1, which

explains the circumstance for the exploitative conduct and the occasion for

the Appellant to assault the child when he found her alone in the house.

45. However, as detailed above, the testimony of both the witnesses about

the entire incident, was consistent. There is no denying that the victim in a

statement under 164 Cr.P.C., Ex.PW-1/A had asserted that the Appellant

had committed penetrative assault, but neither before or after did she depose

about any penetration. It cannot be overlooked that the Victim was barely 03

years 11 months at the time of the incident and her testimony had been

recorded on 05.06.2023, i.e. barely after about one year of the registration of

FIR, reflecting that she was almost 5 years old. While appreciating the

testimony of the Child, the tender age cannot be overlooked. There may

have been minor improvement in a statement under Section 164 Cr.P.C., but

she has been consistent in her testimony as PW-1, which is fully

corroborated by the testimony of her Mother PW-2 and the incident as

narrated in the Complaint, Ex.PW-2/A made by her, in the first instance.

46. In the context of the deviation in the statement under Section 164

Cr.P.C., learned ASJ has rightly held that merely on the basis of statement

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under Section 164 Cr.P.C., the previous statement of the child and the entire

evidence of the victim, cannot be discarded.

47. Having regard to the tender age of the child at the time of the incident

and the limited vocabulary of a child of such age, such variance cannot be

treated as a material contradiction. The core allegation of sexual assault by

the Appellant, has remained consistent. Minor variation in expression, does

not affect the credibility of the witness.

48. There was no indication found from the demeanor of the Child, while

deposing in the Court to reflect any discrepancy to discard her entire

testimony. Rather, the child Victim fully collaborated her earlier statements.

Learned counsel, in the cross-examination of the child, had also not been

able to shake her testimony on any aspect.

49. In the case of Kuna @ Sanjay Behera vs. State of Odisha, 2017 SCC

OnLine SC 1336, it was held that the conviction can be based on the sole

testimony of one eye-witness, if he/she passes the test of reliability and that

it is not the number of witnesses but the quality of evidence that is

important.

50. The next contention raised by the Appellant is that competency of

the Child was not assessed before recording of her evidence. However, the

statement of the testimony of the PW-1 Victim reflects that before recording

her statement, the questions were addressed to her to ensure that she was

comfortable and was competent to give a statement. The administration of

oath was dispensed with, since she was barely 05 years of age.

51. The testimony of the Prosecutrix has also been recorded in the

question-answer form, which shows the testimony was recorded

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conscientiously with sensitivity, in accordance with the guidelines for

recording the statement of a child victim. Therefore, the contention raised by

the Appellant that the competency of the child was not assessed before

recording of her statement, is patently incorrect.

52. The third challenge raised by the Appellant is that the statement of

the Child was tutored. However, the Child in her testimony had deposed

that her Mother had told her to narrate the incident to „Madam‟, after which

she had told the „Madam‟ about the entire incident. PW-2 has also been

cross-examined in extenso and from her narrative as well, nothing has

emerged to show that the Child had been tutored.

53. The Child may have been counselled by the DCW Counsellor as

mandated under Law and the guidelines, but essentially the purpose of

counselling is to help the Child in dealing with trauma and for mental help.

It is not with the objective of tutoring or telling the victim about the

statement to be narrated. Therefore, even though DCW counsellor had

extensive communication with the Victim so as to provide her emotional

support, it cannot be remotely held that she had been tutored by the

Counselor.

54. The fourth aspect which has been argued is that there was a delay of

two days in the registration of FIR, as the incident happened 17.09.2022,

but the FIR was registered on 19.09.2022. However, it has been explained

by PW-2 the Mother, in her testimony that she had narrated the incident to

her mother-in-law, who had advised her to wait for the return of the

Husband, who had gone out on duty on a private taxi to Dehradun,

Uttarakhand. He returned in the morning of 19.09.2022, after which she

CRL.A. 51/2025 Page 16 of 19

narrated the incident to him. It is thereafter, that the call was made to report

the incident to the Police for which a PCR call was made.

55. While observing that the delay has been sufficiently explained, the

learned ASJ has rightly observed, “it is common knowledge that sexual

abuse of children remains shrouded in shame, guilt, family honour and

hence is seldom reported. More than that, when the abuser is a known

person, it is very difficult to report the matter. The normalization of abuse in

society has become so endemic that it is only when the abuse is perceived to

be gruesome and serious, involving penetration or bad touch, that both

children and families pay attention and speak up or report. In such a

scenario it would have been difficult for the mother of the victim to report

the incident immediately against the accused who is a distant relative when

her mother-in-law had asked her to wait for her husband to arrive and

decide on the arrival of her husband.”

56. It is natural for a lady to wait for her husband before approaching the

Police for the alleged incident. The delay has been sufficiently explained

and cannot be held to be fatal in the present context.

57. The Appellant has further contended that the MLC does not support

the alleged incident. However, it cannot be over-looked that the incident

was of touching „su-su‟ of the child with the penis. Once there was no

penetrative assault, the likelihood of there being any injury to the child, is

not likely to happen, in view of the nature of assault. Merely, because there

was no injury on the private part of the child as per MCL, it cannot be a

factor to discredit the testimony of the Child and the Mother.

CRL.A. 51/2025 Page 17 of 19

58. The Appellant has asserted that as per the testimony of the witnesses,

the incident was narrated to the grandmother and there were other family

members present, but none of them have been named as a corroborative

witness. However, it is the settled proposition of law that if the testimony of

the Prosecutrix is of sterling quality, then her sole testimony can be the basis

of conviction. It is the quality of the evidence adduced by the prosecution

and not the quantity, which is the determinative factor.

59. The learned Trial Court rightly placed reliance on Veer Singh vs. State

of UP, (2014) 2 SCC 455, wherein it was held that it is not the number of

witnesses but quality of their evidence which is important as there is no

requirement under the law of Evidence that any particular number of

witnesses is to be examined to prove/disprove a fact. Evidence must be

weighed and not counted.

60. In the end, it is contented on behalf of the Appellant that there was a

dispute over the rent and also that he had caught the Mother of the victim

on one occasion with a third person in her house and she had been

threatening to implicate him in a false case. However, this defense has not

been substantiated by any cogent evidence.

61. Significantly, the Appellant is not even consistent in his defence.

While on one hand, he has asserted that there was a dispute about the rent,

on the other hand he asserted that on one occasion he had caught PW-1 with

a third person and she threatened to implicate him in a false case. The

vagueness of both the defence which lack any particulars, reflect the falsity

of these defense. So much so, this defense of the Appellant was neither

suggested nor put to PW-2 in her cross-examination nor any evidence as has

CRL.A. 51/2025 Page 18 of 19

been led in this regard. The defence which has been set up by the Appellant,

in his statement under Section 313 Cr.P.C is not tenable and is not even

established by any evidence at all.

62. The entire narration of the incident, along with the presence of the

Appellant throughout, especially when the incident was narrated by the

Child to the Mother and also that he himself reached the Police Station, even

before the Complainant and family did, reflect the truthfulness of the

testimony of the Child and her Mother.

63. Learned Trial Court has therefore, rightly held that the age of the

victim has to be kept in mind while appreciating her statement, the limits on

the vocabulary of the Child Victim at the age of 03 years and 11 months or

even 05 years, cannot be overlooked. The Child had told the Doctor at the

time of MLC that the Appellant had flashed his private part and made her

touch it.

64. Learned Trial Court has rightly held that one the entire incident was

established on cogent evidence and the presumption of Section 29 POCSO

Act arose. The onus was on the Appellant to prove his defense, which in the

present case, he has miserably failed to do so.

65. Making a small Child touch the private part with sexual intent

amounts to aggravated sexual assault and therefore, the offence under

Section 10 POCSO Act, was established.

Conclusion:

66. Learned ASJ has rightly convicted and sentenced the Appellant under

Section 10 POCSO Act, however, no Charge under Sections

354/354A/354B IPC was framed and therefore, the Appellant could not have

CRL.A. 51/2025 Page 19 of 19

been convicted under these Sections. Pertinently, there was no separate

Sentence under these Sections.

67. The conviction and sentence of the Appellant under Sections

354/354A/354B IPC are hereby set aside, but conviction and sentence under

Section 10 POCSO Act, is upheld.

68. There is no merit in the Appeal, which is hereby dismissed along with

pending Applications, if any.

(NEENA BANSAL KRISHNA)

JUDGE

JANUARY 05, 2026/R