Introduction
In a significant judgment on the scope of the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Justice Madhu Jain of the Delhi High Court has set aside a conviction recorded by the Trial Court, holding that the presumption under Section 29 does not operate automatically merely because an accused is facing trial for a POCSO offence — the prosecution must first establish the foundational facts of the offence through cogent and reliable evidence.
Background
The appeal was filed under Section 415(2) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the judgment of conviction dated 06.10.2025 and the order on sentence dated 03.12.2025 passed by the ASJ (FTSC) (POCSO), North District, Rohini Courts, Delhi. The appellant, Vikash, had been convicted for offences under Sections 366, 376(2)(n) and 506(II) of the IPC and Section 5(l) punishable under Section 6 of the POCSO Act, and sentenced to a cumulative term running up to 20 years’ rigorous imprisonment, along with a compensation award of Rs. 10,50,000 to the survivor under the Delhi Victim Compensation Scheme.
The case arose out of a missing person complaint filed by the prosecutrix’s mother in August 2023, after which the prosecutrix was recovered along with the appellant from Ambala Railway Station. Sections 376 IPC and 6 POCSO were subsequently added to the FIR based on the prosecutrix’s statement during investigation.
The Central Issue: Inconsistent Versions of the Prosecutrix
The crux of the appeal was the material inconsistency between the three accounts given by the prosecutrix at different stages of the proceedings — her statement under Section 161 Cr.P.C., her subsequent statement under Section 164 Cr.P.C., and her deposition before the Trial Court. In her Section 161 statement, she described a consensual relationship with the appellant, her neighbour, stating that they had grown close, eloped together, and even solemnized a marriage at a temple, with physical relations occurring with her consent. Her later Section 164 statement, however, described a markedly different sequence of events involving threats and coercion.
The defence argued that these were not peripheral discrepancies but went to the very root of the prosecution’s case, and that the Trial Court had erred by relying on the “improved” version without explaining why the earlier statement was being disregarded. The defence also pointed to several investigative gaps — the alleged place of occurrence was never properly identified, no site plan was prepared, key witnesses (including the factory owner and a person named Ranjeet) were never examined, and no call detail records or other corroborative material were placed on record.
The State, in response, argued that since the prosecutrix was admittedly a minor (about 17 years of age, based on her school certificate) at the time of the incident, her consent was legally irrelevant, and the statutory presumptions under Sections 29 and 30 of the POCSO Act operated against the accused.
The High Court’s Reasoning
Justice Jain held that while the minority of the prosecutrix does render her consent legally irrelevant, this does not relieve the prosecution of its independent burden to first establish the essential ingredients of the offence through reliable evidence — only once that foundational burden is discharged does the presumption under Section 29 shift the onus to the accused.
The Court relied heavily on the Supreme Court’s decision in Debraj Dutta v. State of West Bengal (decided 07.04.2026), which held that the Section 29 presumption does not arise automatically upon registration of a case, and on this Court’s own decision in Nirmal Kumar v. State (NCT of Delhi), 2026:DHC:4028, which similarly held that the presumption operates only after foundational facts are established, and that the benefit of doubt must go to the accused where the prosecutrix’s versions are materially inconsistent.
The judgment also drew on State of Uttarakhand v. Sanjay Ram Tamta, (2025) 3 SCC 433, for the proposition that omissions in a Section 161 statement that surface as improvements at trial materially damage the credibility of the prosecution case, and on Alamelu v. State, (2011) 2 SCC 285, for the settled principle that while a conviction can rest solely on the testimony of the prosecutrix, that testimony must be free of basic infirmities and improbabilities to inspire confidence.
Applying these principles, the Court found that the Trial Court had proceeded on the erroneous assumption that the Section 29 presumption became operative merely because the appellant was facing a POCSO trial, without first testing whether the foundational facts had been reliably established. Given the material and irreconcilable differences between the prosecutrix’s three accounts — going to the very genesis of the case — combined with unexplained investigative lapses, the Court held it would be unsafe to sustain the conviction.
Outcome
The Delhi High Court allowed the appeal, set aside both the judgment of conviction dated 06.10.2025 and the order on sentence dated 03.12.2025, and acquitted the appellant of all charges by extending to him the benefit of doubt. The Court directed his forthwith release, if not required in any other case, with a copy of the judgment to be sent to the jail authorities for compliance.
Key Takeaway
This judgment is an important reminder that the reverse-burden presumptions under Sections 29 and 30 of the POCSO Act are not a substitute for the prosecution’s primary evidentiary burden. They come into play only after the foundational facts of the offence have been established through credible, consistent evidence — a threshold the prosecution must clear before the burden shifts to the accused to rebut the presumption.
CASE DETAILS: Vikash v. State Govt of NCT Delhi & Anr., CRL.A. 348/2026 & CRL.M.(BAIL) 749/2026, Delhi High Court, judgment dated 04.08.2026 (Madhu Jain, J.)
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