Few situations test a criminal court like a child sexual assault trial in which the child and her family, by the time evidence is recorded, no longer support the prosecution. In CRL.A. 1494/2025, decided on 15 January 2026, a Division Bench of the Delhi High Court comprising Justice Prathiba M. Singh and Justice Madhu Jain dismissed an appeal under Section 415 read with Section 528 of the BNSS against conviction for offences under Sections 376(2) and 376(3) IPC and Section 6 of the POCSO Act. The appellant — the victim's own father — stood convicted of repeated assaults that left his minor daughter pregnant. The victim and her mother resiled at trial; the DNA report on the foetal material did not.
The facts, briefly and carefully
The prosecutrix, a Class 6 student, was found to be three months pregnant when the FIR was registered in July 2021. Her complaint alleged assaults by her father in March 2020 and March 2021. The pregnancy was medically terminated, and the foetal material was preserved and sent for DNA profiling along with samples of the accused. The trial court convicted, relying centrally on the FSL report establishing that the appellant was the biological father of the foetus. Identifying details of the victim are withheld here, as the law requires; the High Court itself anonymised the cause title.
The hostile turn — and why it did not decide the appeal
By the time depositions were recorded, both the victim and her mother had shifted ground and sought to exculpate the appellant. The Bench dealt with this the way appellate courts increasingly must in intra-family POCSO cases: it examined why the recantation occurred and what evidence stood independent of it. The Court noted the family's economic dependence on the appellant and the social pressure inherent in prosecuting the head of one's own household, observing that such circumstances may explain contradictory statements — but they cannot require a court to ignore scientific evidence. Significantly, portions of the victim's own cross-examination acknowledged the assaults and the resulting pregnancy.
The evidentiary architecture of the conviction
| Plank | What it established | How the defence challenge fared |
|---|---|---|
| FSL DNA report | Appellant's biological paternity of the terminated foetus | Unrebutted; described as conclusive |
| Chain of custody | Samples sealed at the hospital, seals intact at FSL | Fourteen-day gap held immaterial absent any sign of tampering |
| Initial complaint and MLC | Contemporaneous account and confirmed pregnancy | Recantation at trial explained by circumstance, not credited |
| Section 29 POCSO presumption | Burden shifted once foundational facts proved | No rebuttal evidence of substance offered |
What the Division Bench held
Dismissing the appeal, the Court affirmed both conviction and sentence. Three strands of the reasoning matter beyond this case. First, DNA profiling, when the sampling and sealing are sound, supplies proof of a quality that testimonial vacillation cannot dissolve; the judgment records the extraordinary discriminating power of the technique. Second, the Section 29 presumption is not a substitute for evidence but a consequence of it — the prosecution must first prove foundational facts, and here science did that work. Third, the Court underscored the aggravated character of sexual violence by a father, the child's natural guardian, describing the betrayal of that trust in the strongest terms and finding no ground for leniency in sentence.
Lessons for appellate practice
- An appeal built solely on the hostility of the victim rarely succeeds where forensic evidence independently proves the offence; the attack must engage the science itself — sampling, sealing, transmission and analysis.
- Chain-of-custody objections need material, not arithmetic. A gap in days between seizure and testing persuades only if coupled with evidence of broken seals or unexplained handling.
- Conversely, where foundational facts are shaky, Section 29 cannot fill the void — the presumption operates after, not before, the prosecution's basic proof.
- Suspension of sentence pending such appeals faces headwinds; the gravity of Section 6 offences and the quality of DNA proof weigh heavily at the Section 430 BNSS stage.
Practice note: In intra-family POCSO defences, the instruction stage matters more than the appeal. Once foetal DNA is on record with an intact custody trail, the realistic appellate terrain narrows to sentence and procedural fairness. Counsel advising families should also remember that pressuring a child witness has consequences of its own, and that the identity-protection regime of Section 23 POCSO and Section 72 BNS binds everyone, including the parties.
Frequently Asked Questions
Can a POCSO conviction stand when the victim turns hostile?
Yes, where other evidence independently establishes the foundational facts. In this appeal, DNA analysis of the terminated foetus conclusively established the appellant's paternity. The Court held that scientific evidence of that quality cannot be discarded merely because witnesses recant, particularly where the recantation is explicable by family pressure and economic dependence.
What is the role of Section 29 of the POCSO Act in such cases?
Section 29 raises a presumption of guilt for the scheduled offences once the foundational facts are established by the prosecution. Here, the DNA evidence supplied that foundation, shifting the burden to the accused, who offered no credible rebuttal.
Does a delay between sample collection and forensic testing break the chain of custody?
Not by itself. The defence argued the samples were examined fourteen days after collection. The Court rejected the challenge because the samples reached the laboratory with hospital seals intact and there was no material suggesting tampering.
What sentence follows conviction under Section 6 POCSO?
Section 6 prescribes rigorous imprisonment of not less than twenty years, extendable to imprisonment for the remainder of natural life, with fine. The High Court found the sentence imposed proportionate, emphasising the aggravated breach of trust where the offender is the child's natural guardian.