Delhi High Court acquits man in POCSO case, says presumption under Section 29 does not arise until prosecution proves foundational facts
The Delhi High Court has held that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences (POCSO) Act does not automatically arise merely because an accused is facing trial under the Act. The Court ruled that the prosecution must first establish the foundational facts constituting the offence through reliable and cogent evidence before the burden shifts to the accused. Finding material contradictions in the prosecutrix’s successive statements and significant investigative lapses, the Court set aside the appellant’s conviction and acquitted him by extending the benefit of doubt.Justice Madhu Jain allowed the appeal filed by Vikash, who had been convicted by the Trial Court for offences under Sections 366, 376(2)(n) and 506(II) of the Indian Penal Code, along with Section 5(l) punishable under Section 6 of the POCSO Act, and sentenced to 20 years’ rigorous imprisonment.Relying on the Supreme Court’s recent decision in Debraj Dutta v. State of West Bengal, the Court observed:“The prosecution must first establish the foundational facts constituting the alleged offence. Unless such foundational facts are proved through cogent and reliable evidence, the burden does not shift upon the accused.”BackgroundThe prosecution case originated from a missing person complaint lodged on 16.08.2023 after the prosecutrix, then a Class IX student, could not be traced by her family. An FIR was initially registered under Section 363 IPC.About a week later, on 23.08.2023, the prosecutrix was recovered along with the appellant from Ambala Railway Station. During investigation, she gave a statement under Section 161 of the Code of Criminal Procedure stating that she and the appellant, who was her neighbour, had developed a romantic relationship about a month earlier. According to her, both families objected to their relationship, following which they voluntarily left for Ambala, got married at a temple on 17 August 2023, and established physical relations with her consent before being apprehended by the police.In view of that recovery, the investigating agency added offences under Section 376 IPC and the POCSO Act. After investigation, a chargesheet was filed and the appellant was charged under Sections 366, 376(2)(n) and 506 IPC, along with Section 5(l) punishable under Section 6 of the POCSO Act. The Trial Court ultimately convicted him and awarded 20 years’ rigorous imprisonment under the POCSO Act, besides sentences under the IPC.The appellant challenged the conviction before the Delhi High Court, asserting that the Trial Court had overlooked material contradictions in the prosecutrix’s statements recorded at different stages of the proceedings.Before the High Court, the appellant argued that the prosecution case suffered from fundamental inconsistencies. He pointed out that in her statement under Section 161 CrPC, the prosecutrix had categorically stated that she had voluntarily accompanied him to Ambala, that they had solemnised a marriage in a temple, and that physical relations had been established with her consent.However, in her subsequent statement under Section 164 CrPC and later during her deposition before the Trial Court, she introduced an entirely different version, alleging that the appellant had threatened her with a knife, forcibly taken her to a factory, sexually assaulted her on two occasions and threatened to kill her family.The appellant argued that these were not minor discrepancies but material improvements going to the root of the prosecution case. He further argued that the investigating agency had failed to identify or prove the alleged place of occurrence, prepare a site plan, examine the factory owner or another material witness, produce call detail records, or lead any independent evidence corroborating the prosecutrix’s later version.Opposing the appeal, the State argued that the prosecutrix was admittedly about 17 years old at the time of the incident, as reflected in her school records. It contended that since she was a minor, any question of consent was legally irrelevant under the POCSO Act. The prosecution therefore urged the Court to uphold the Trial Court’s findings and the conviction recorded against the appellant.The High Court found that the prosecution case rested almost entirely on the testimony of the prosecutrix and that her statements at different stages of the proceedings disclosed materially different versions of the incident.The Court noted that in her statement under Section 161 CrPC, the prosecutrix stated that she had voluntarily accompanied the appellant to Ambala, that they were in a relationship, had married in a temple and had established physical relations with her consent. However, in her subsequent statement under Section 164 CrPC, she alleged for the first time that the appellant had threatened her with a knife, taken her to a factory in Sector-4, sexually assaulted her there and threatened to kill her parents if she disclosed the incident. During her deposition before the Trial Court, further improvements were made regarding the manner in which she was taken away and the alleged sexual assaults.The High Court observed that these were not minor inconsistencies but went to the very foundation of the prosecution case.As the Court held:“These variations are not confined to peripheral matters but concern the genesis of the prosecution case itself.”The High Court found that the Trial Court had proceeded on an erroneous understanding of the statutory presumptions contained in Sections 29 and 30 of the POCSO Act. Relying on the Supreme Court’s decision in Debraj Dutta v. State of West Bengal, the Court reiterated that the presumption under Section 29 does not arise merely because an accused is charged with an offence under the POCSO Act.The Bench observed:“The learned Trial Court appears to have proceeded on the assumption that the statutory presumption under Section 29 of the POCSO Act became operative merely because the appellant was facing trial for an offence under Section 6 of the Act. Such an approach… is legally unsustainable.”While observing that the minority of the prosecutrix rendered her consent legally irrelevant, the Court clarified that this did not dispense with the prosecution’s obligation to establish the foundational facts constituting the alleged offences through reliable evidence.The High Court also found several deficiencies in the investigation, which assumed importance in light of the inconsistent testimony of the prosecutrix. The Court noted that the alleged factory where the sexual assaults were said to have occurred was neither properly identified nor proved during trial. No site plan was prepared at the instance of the prosecutrix, the alleged factory owner was never examined, another material witness named Ranjeet was not produced, and the investigating agency failed to place on record any call detail records or other independent evidence corroborating the prosecution version.The Bench observed that although every investigative lapse does not necessarily benefit the accused, such omissions acquire significance where the prosecution primarily relies upon the testimony of a witness whose own versions materially differ.Reiterating the settled principles governing sexual offence cases, the High Court observed that a conviction can undoubtedly rest solely upon the testimony of the prosecutrix.However, such testimony must be consistent, credible and free from material infirmities.Referring to the Supreme Court’s decisions in State of Uttarakhand v. Sanjay Ram Tamta and Alamelu v. State, the Court observed that material improvements introduced during trial, which were absent from earlier statements under Section 161 CrPC, directly affect the credibility of the prosecution case.The Court observed:“Where the prosecution case is founded solely upon the testimony of the prosecutrix and such testimony undergoes material improvements or is inconsistent with her earlier versions, the Court is required to scrutinize the evidence with greater caution.”Applying these principles, the High Court concluded that the prosecution had failed to establish the foundational facts beyond reasonable doubt. The Court held that the prosecutrix had furnished materially different versions in her statements under Sections 161 and 164 CrPC and in her testimony before the Trial Court. Since these inconsistencies struck at the very genesis of the prosecution case, it would be unsafe to sustain the conviction.The Bench observed:“In the absence of reliable and consistent evidence establishing the foundational facts beyond reasonable doubt, it would be unsafe to sustain the conviction. Consequently, the appellant is entitled to the benefit of doubt.”Allowing the appeal, the Delhi High Court set aside the judgment of conviction dated 6 October 2025 and the order on sentence dated 3 December 2025. The Court acquitted the appellant of offences under Sections 366, 376(2)(n) and 506(II) IPC, as well as Section 5(l) punishable under Section 6 of the POCSO Act, by extending him the benefit of doubt, and directed that he be released forthwith if not required in any other case.CRL.A. 348/2026 & CRL.M.(BAIL) 749/2026VIKASH v. THE STATE GOVT OF NCT DELHI & ANRDate of Decision: 04.08.2026Appearance:For Petitioner: Mr. Ankur Sood, Ms. Romila Mandal, Mr. Dhaman Trivedi and Mr. Prajwal Suman, Advs.For Respondent:Mr. Digam Singh Dagar, APP SI Ayushi Raj, PS – Bawana(The author of this article, Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)
