“Presumption Under Section 29 Does Not Insulate Flawed Testimony”: Delhi High Court Acquits Appellant in POCSO Case Over Contradictions and Incomplete Investigation
Isabella Mariam
In a recent judgment, the Delhi High Court Single Bench of Justice Sanjeev Narula set aside the conviction and sentence of an individual charged under the Protection of Children from Sexual Offences Act, 2012. The decision, delivered on 25th March 2025, followed a detailed examination of the evidence and contradictions present in witness testimonies. The Court ordered the appellant's immediate release, citing failure by the prosecution to prove the charges beyond a reasonable doubt.
The appellant had been sentenced to rigorous imprisonment for five years and a fine of INR 3,000, with a default sentence of three months' simple imprisonment. Additionally, compensation of INR 40,000 had been awarded to the prosecutrix. These were reversed in the present appeal.
The appeal was filed against the judgment and sentencing order delivered by the Additional Sessions Judge in connection with FIR No. 1138/2015, registered at PS Bindapur. The case involved allegations by an 11-year-old girl that the appellant had engaged in inappropriate physical contact with her during a tuition session. The appellant was charged under Sections 10 and 9(m) of the POCSO Act.
The prosecution’s case rested on the testimony of seven witnesses, including the prosecutrix (PW-1), her mother (PW-2), and her father (PW-3), along with police officials and the investigating officer (PW-5).
The appellant denied all allegations in his statement recorded under Section 313 of the CrPC. He argued that the allegations were fabricated in retaliation after he had reprimanded the prosecutrix for not paying tuition fees and creating disturbances in class. He did not lead any evidence in his defence.
The appellant’s counsel raised several contentions. They pointed to contradictions in the prosecutrix's statements under Sections 161 and 164 CrPC, as well as inconsistencies between her account and her mother's written complaint. Notably, the allegation of the appellant touching private parts, as recorded in the complaint, did not find mention in the prosecutrix’s recorded statements or court testimony.
Discrepancies regarding tuition fee payments were also cited. While the prosecutrix claimed they were attending classes on a trial basis without paying fees, her father stated in his testimony that fees of INR 250-300 were regularly paid.
The defence also argued that the tuition centre was a public place with multiple students and the tutor present, asserting that the alleged actions could not have occurred unnoticed in such a setting. Further, the investigating officer admitted in cross-examination that other students questioned did not support the prosecutrix’s version, though their statements were not formally recorded.
The presence of the prosecutrix's brother on the day of the incident, as admitted by her during cross-examination, was also flagged as a crucial point. The brother was not examined, despite allegedly being informed of the incident immediately.
The State, represented by the Additional Public Prosecutor, argued that the statements of the prosecutrix were consistent and clear, and should be considered sufficient for conviction. It was contended that under Section 29 of the POCSO Act, the burden of proof shifts to the accused once foundational facts are established.
The Court observed that the victim’s testimony must be coherent, consistent, and free from material contradictions. Citing Nirmal Premkumar v. State 2024 SCC OnLine SC 260., it recorded: "The Court can rely on the victim as a 'sterling witness' without further corroboration, but the quality and credibility must be exceptionally high."
The Court noted inconsistencies in the prosecutrix’s statements. In her cross-examination, she introduced new claims, such as the presence of her brother, which were absent from earlier statements. She also gave conflicting information regarding fee payments.
Regarding allegations of prior inappropriate conduct involving another girl, the Court observed that no other child was identified or examined. It quoted the investigating officer’s testimony: "I did not find any other child who had made complaint against the accused though in the statement of child victim u/s 164 C.P.C. there is mentioning of one another child also."
The Court further recorded: "The Prosecutrix's allegation that the Appellant had engaged in similar conduct with another child was not only unsubstantiated by any evidence, but directly contradicted by the testimony of the IO."
The Court also observed inconsistencies between the testimonies of PW-2 and the prosecutrix, particularly regarding whether the appellant had touched her private parts. It noted: "PW-2’s version materially diverges from the Prosecutrix’s own testimony, casting serious doubt on the reliability of her account."
On the issue of non-examination of independent witnesses, the Court found the lapse significant. The IO admitted that students present did not support the allegations but their statements were neither recorded nor was any explanation given for their non-examination. The Court stated: "The deliberate omission of potential witnesses whose statements may not have been favourable to the Prosecution undermines the credibility of the investigative process itself."
Relying on Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145, the Court recorded: "In cases where material and independent witnesses are withheld without explanation, particularly when there are gaps or infirmities in the Prosecution’s case, the Court is entitled to draw an adverse inference against the Prosecution."
In conclusion, the Court stated: “In light of the aforesaid contradictions, the testimony of the Prosecutrix and the statements of the witnesses fail to inspire the confidence of the Court.” It was further held that “the said presumption stands discredited by the numerous discrepancies”, and the Prosecution failed to prove its case beyond reasonable doubt.
The Court allowed the appeal and passed the following directions:
"The impugned judgment dated 25th August, 2022 and order on sentence dated 19th October, 2022 passed by the Trial Court are set aside."
"The Appellant is acquitted and is directed to be released forthwith, if not required in any other case."
"A copy of this judgment be forwarded to the Jail Superintendent and the Trial Court for information and compliance. A copy be also provided to the Appellant, free of cost."
Advocates Representing the Parties
For the appellant: Advocates Sakshi Tanwar and Rohan Kumar.
For State: Mr. Sunil Kumar Gautam, (APP for State)
Case Title: NT v. State
Case Number: CRL.A. 574/2022
Bench: Justice Sanjeev Narula
Neutral Citation: 2025: DHC:1977
[Read/Download order]
