The difference between aggravated penetrative sexual assault and aggravated sexual assault under the POCSO Act, 2012 is the difference between a minimum of twenty years and a maximum of five. In Vishnu Prasad v. State of NCT of Delhi (CRL.A. 269/2024, decided 30 October 2026), Justice Madhu Jain of the Delhi High Court held that the dividing line must be proved, not presumed: the five-year-old victim's testimony established sexual touching by a neighbour, but her words — including the phrase "andar laga tha" — did not establish insertion. The conviction under Section 6 POCSO and Section 376AB IPC was set aside; the conviction under Section 9(m) read with Section 10 POCSO was sustained, and with it a five-year sentence in place of twenty.
The case below
FIR No. 358/2021 was registered at PS Jaitpur on 23 July 2021 on the complaint of a mother who reported that her five-year-old daughter had been sexually assaulted by a neighbour two days earlier. The chargesheet followed within two months; charges were framed in October 2021. The prosecution examined seven witnesses, the child's birth certificate fixed her age, and the accused led no defence evidence. On 7 November 2023 the trial court convicted on all counts, and in February 2024 imposed twenty years' rigorous imprisonment under Section 6 POCSO alongside lesser concurrent terms, with compensation of Rs 2,00,000 and a final award of Rs 8,50,000 under the Delhi Victim Compensation Scheme, 2018.
The single question on appeal
The High Court framed one issue: did the prosecution prove aggravated penetrative sexual assault, or aggravated sexual assault without penetration? The distinction drives everything — Section 6 carries a minimum of twenty years where the victim is below twelve, while Section 10 carries a maximum of five.
What was proved
The child clearly identified the appellant and described sexual touching. The court found her testimony "sufficiently establishes the occurrence of sexual contact", and held that discrepancies about the exact place of occurrence, and the two-day delay in the FIR, did not shake that core.
What was not
Insertion. The Section 161 statement spoke of finger insertion, the Section 164 statement of touching — neither is substantive evidence. The testimony described contact, and the trial court had treated "andar laga tha" as proof of insertion without distinguishing contact from penetration. No medical finding supplied the deficit.
The presumption is not a shortcut
The State leaned on Section 29 POCSO, which presumes commission of the charged offence once foundational facts are shown. Following the Supreme Court in Deepak JC v. State Govt. of NCT Delhi, 2026 INSC 1008, the court held that the presumption "cannot be mechanically invoked to dispense with an assessment of the evidence". Where the evidence itself leaves the penetrative element ambiguous, the presumption does not convert the lesser offence into the graver one. The court also applied Phool Singh v. State of M.P. and Attorney General for India v. Satish, and a line of Delhi decisions, for the principle it stated at paragraph 40: "the conviction must correspond to the offence actually proved."
Medical evidence cuts both ways
The judgment is balanced on the forensic record. The absence of injuries, the court said, does not by itself exclude penetration — a caution against treating a negative MLC as an acquittal card. But equally, where no internal examination was conducted and the FSL report found nothing incriminating, the medical record cannot affirmatively prove insertion. The evidentiary burden stays on the testimony, and the testimony here proved touch.
The result
- Acquitted under Section 376AB IPC and Section 6 POCSO; the 20-year sentence set aside.
- Convicted under Section 9(m) read with Section 10 POCSO; five years' RI and fine maintained.
- Sections 354A and 506(1) IPC convictions sustained, subject to Section 42 POCSO, which bars double punishment for the same act.
- Release directed on completion of the five-year term, counting over four years already served plus remission; victim compensation undisturbed.
Practice note: For defence counsel, the case shows the value of a precise, clause-level analysis of what the child witness actually said — in court, not in Section 161/164 statements — before conceding the gravest charge. For prosecutors, it is a reminder to seek clarificatory examination where a child's description is ambiguous on the penetrative element, and to ensure the medical examination addresses it. The conviction that survives appeal is the one the evidence actually supports.
Frequently Asked Questions
What was the appellant originally convicted of?
The trial court at Saket convicted him under Sections 376AB, 354A and 506 IPC and Sections 6 and 10 of the POCSO Act for the 2021 assault on a five-year-old neighbour, sentencing him to 20 years' rigorous imprisonment under Section 6, with victim compensation of Rs 8.5 lakh under the Delhi scheme remaining undisturbed on appeal.
Why did the High Court find penetration unproved?
The child's accounts varied between touching and insertion across her Section 161 and 164 statements, which are not substantive evidence; her court testimony described contact, and the phrase "andar laga tha" was held ambiguous. No medical finding established insertion — no internal examination was done and the FSL report was negative.
Does the Section 29 POCSO presumption not fill that gap?
No. Relying on the Supreme Court's decision in Deepak JC v. State (2026 INSC 1008), the court held the presumption is not absolute and cannot be mechanically invoked to dispense with an assessment of the evidence. The foundational facts of the graver offence must still emerge from the record.
What happened to the sentence?
The 20-year sentence under Section 6 was set aside. The five-year rigorous imprisonment under Section 10, with convictions under Sections 354A and 506(1) IPC subject to Section 42 POCSO, was maintained, sentences running concurrently with set-off. Having served over four years with remission, the appellant was ordered released on completing the five-year term.