The Delhi High Court set aside a conviction for rape, kidnapping and criminal intimidation under the POCSO Act, emphasizing that the statutory presumption of guilt under Section 29 does not arise automatically and that material inconsistencies in the victim’s testimony must be rigorously examined.
Background & Facts
The Dispute
The appellant, Vikash, was charged with offences under Sections 366, 376(2)(n) and 506(II) of the Indian Penal Code and Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that he abducted and sexually assaulted a minor girl, identified as ‘S’, who was reported missing on 16.08.2023.
Key Facts
- 16.08.2023: Complaint received (GD No. 133A); FIR No. 695/2023 registered under Section 363 IPC for missing minor.
- 23.08.2023: Victim recovered from Ambala Railway Station along with the appellant; appellant arrested.
- Victim’s statement under Section 161 CrPC (recorded 23.08.2023) claimed consensual relationship, marriage on 17.08.2023, and voluntary travel to Ambala.
- 21.10.2023: Charge-sheet filed; charges framed on 25.10.2023 for Sections 366, 376(2)(n), 506 IPC and Section 5(l) of POCSO.
- 02.04.2024: Appellant’s statement under Section 294 CrPC recorded; he admitted preparation of victim’s statement but denied its contents.
- 19.04.2025: Appellant’s statement under Section 313 CrPC recorded; defence evidence presented on 03.07.2025.
- 06.10.2025: Trial Court convicted appellant, relying on statutory presumptions under Sections 29 and 30 of the POCSO Act.
- 03.12.2025: Sentence imposed - rigorous imprisonment of 4 years (IPC 506), 7 years (IPC 366), 20 years (POCSO 5(l)) with fines and compensation of Rs.10,50,000 under Delhi Victim Compensation Scheme.
Procedural History
- 16.08.2023: FIR registered.
- 21.10.2023: Charge-sheet filed.
- 25.10.2023: Charges framed.
- 06.10.2025: Trial Court judgment convicting appellant.
- 03.12.2025: Trial Court order on sentence.
- 04.08.2026: Appeal filed under Section 415(2) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023; judgment delivered on the same day.
Parties' Positions
- Appellant: Contended that the victim’s statements were contradictory; the prosecution failed to establish the place of occurrence; lack of corroborative evidence rendered conviction unsafe.
- Respondents (State): Asserted that the victim was a minor (approximately 17 years) making any consent legally irrelevant; relied on statutory presumptions under Sections 29 and 30 of the POCSO Act.
Relief Sought
The appellant sought quashing of the conviction and sentence, release from custody, and restoration of his liberty.
The Legal Issue
Whether the statutory presumption of guilt under Section 29 (and the accompanying mental-state presumption under Section 30) of the Protection of Children from Sexual Offences Act, 2012 arises automatically upon filing of a charge-sheet, and whether material inconsistencies in the victim’s statements defeat the prosecution’s case, thereby entitling the accused to the benefit of doubt.
Arguments Presented
For the Appellant
- The appellant argued that the victim’s statements under Sections 161 and 164 CrPC were materially inconsistent, rendering the prosecution’s case unreliable.
- Cited Debraj Dutta v. State of West Bengal and Nirmal Kumar v. State (NCT of Delhi) to assert that the presumption under Section 29 is rebuttable and only operative after the prosecution establishes foundational facts.
- Emphasised investigative lapses: no site plan, no examination of factory owner or key witness, and absence of call-detail records.
For the Respondent
- The State maintained that the victim, being a minor, could not give valid consent, making the statutory presumption applicable.
- Relied on the trial court’s finding that the prosecution proved the case beyond reasonable doubt and that the presumption under Sections 29 and 30 shifted the burden to the accused.
The Court's Analysis
The Court began by reiterating the language of Section 29 of the POCSO Act, which creates a rebuttable presumption of guilt but does not make it automatic. It observed that the presumption “does not arise automatically and can operate only after the prosecution has first established the foundational facts constituting the alleged offence.”
"The statutory presumption under Section 29 of the POCSO Act does not arise automatically and can operate only after the prosecution has first established the foundational facts constituting the alleged offence."
The Court examined the victim’s statements. The Section 161 statement described a consensual relationship, a marriage on 17.08.2023, and voluntary travel to Ambala. The later Section 164 statement introduced a narrative of abduction, threats, and sexual assault, contradicting the earlier account. The Court held that such material improvements are not peripheral; they strike at the core of the prosecution’s case and must inspire confidence.
Citing State of Uttarakhand v. Sanjay Ram Tamta and Alamelu & Anr. v. State, the Court stressed that improvements or omissions in a witness’s statement recorded under Section 161 cannot be safely relied upon without corroboration. The absence of independent evidence - no call-detail records, no site plan, no examination of the alleged factory owner - further weakened the prosecution’s case.
The Court also noted that while the victim’s minority renders any alleged consent legally irrelevant, the prosecution still bears the burden of proving the essential ingredients of the offences. The trial court’s reliance on statutory presumption alone, without satisfying the evidentiary threshold, was deemed “legally unsustainable.”
Applying the principles from Nirmal Kumar and Debraj Dutta, the Court concluded that the inconsistencies created a reasonable doubt. Consequently, the benefit of doubt must be granted to the accused.
The Verdict
The appeal is allowed. The conviction dated 06.10.2025 and the sentence dated 03.12.2025 are set aside. The appellant is acquitted of offences under Sections 366, 376(2)(n), 506(II) IPC and Section 5(l) of the POCSO Act. He is to be released forthwith, and any pending applications stand disposed of.
What This Means For Similar Cases
Presumption Not Automatic
- Courts will not invoke Section 29 of the POCSO Act merely because the accused faces a charge under the Act.
- Prosecutors must first establish the factual matrix of the alleged offence before the presumption can shift the burden.
Inconsistent Victim Statements Require Scrutiny
- Material contradictions between a victim’s statements under Sections 161 and 164 CrPC are fatal unless corroborated by independent evidence.
- Defence counsel should highlight such inconsistencies and demand exclusion of later, uncorroborated statements.
Investigative Lapses Undermine Conviction
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Failure to identify the place of occurrence, produce site plans, or examine key witnesses weakens the prosecution’s case.
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Practitioners should ensure thorough investigation records to avoid reliance on a single witness.
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Review victim statements for internal consistency before trial.
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Request production of CDRs, site plans, and witness testimonies early.
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Argue that statutory presumption is rebuttable and requires foundational proof.
