The Delhi High Court has affirmed that the non-examination of a severely disabled child victim in a PoCSO case does not automatically vitiate a conviction, provided the prosecution establishes the victim’s incapacity to communicate through credible medical and testimonial evidence. This judgment reinforces the principle that procedural rigidity must yield to substantive justice in cases involving vulnerable victims.
Background & Facts
The Dispute
The appellant, Nabi Hasan, was convicted and sentenced for the offences of penetrative sexual assault under Section 6 read with Section 5 of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act), and Section 377 of the Indian Penal Code, 1860. The incident occurred on the morning of 21.08.2017 between 08:00 AM and 10:15 AM at the residence of the victim, a minor boy aged approximately six to seven years, in Malviya Nagar, New Delhi. The victim, born on 01.01.2011, suffered from cerebral palsy since birth, rendering him permanently physically and mentally disabled with a 73.3% locomotor disability.
Key Facts
- The victim was non-verbal, unable to walk, sit, eat, or drink independently, and required constant care.
- A disability certificate (Ext. PW1/H) issued on 28.12.2015 by the Disability Board, G.B. Pant Hospital, confirmed cerebral palsy with 73.3% permanent disability.
- On 21.08.2017, the victim’s mother, PW1, left for work at 08:00 AM, leaving the victim under the care of the accused, a distant relative who frequently visited the household.
- At approximately 09:30 AM, PW3, the victim’s cousin, heard the victim crying and observed the accused lying beside him on the bed through a ventilator grill.
- PW2, the victim’s uncle, was informed by PW3 and proceeded to the house, where he found the door locked from inside.
- PW1 arrived at the scene at around 10:15 AM, banged on the door, and the accused opened it. The victim’s diaper was missing; his anal area showed swelling, redness, and faecal matter.
- The victim was rushed to AIIMS, where a Medical Legal Certificate (MLC) was prepared on 21.08.2017.
- The police seized a bedsheet, a 500ml plastic bottle of mustard oil, and the victim’s diaper as exhibits.
- The accused claimed he was falsely implicated due to a financial dispute, alleging the victim’s mother had borrowed ₹70,000 from him and that the case was filed after he demanded repayment post-demonetization.
Procedural History
- 21.08.2017: FIR (Ext. PW7/B) registered at Malviya Nagar Police Station under Sections 377 IPC and Sections 4 and 6 of the PoCSO Act.
- 14.11.2017: Charge-sheet submitted by PW17, Assistant Sub-Inspector.
- 05.04.2018: Trial court framed charges under Section 6 read with Section 5 of the PoCSO Act and Section 377 IPC; accused pleaded not guilty.
- 02.09.2024: Trial court convicted the accused and recorded findings of guilt.
- 14.10.2024: Sentencing order passed, awarding 10 years rigorous imprisonment and a fine of ₹25,000 (with 1 year simple imprisonment in default).
- 16.05.2026: Appeal heard and dismissed by the Delhi High Court.
The Parties' Positions
Appellant (Accused): Contended that the prosecution failed to prove its case due to non-examination of the victim, lack of DNA evidence, and inconsistencies in witness testimony. Argued that the MLC opinion was speculative and that the disability certificate did not establish speech impairment.
Respondent (State): Maintained that the victim’s severe disability, corroborated by multiple witnesses and medical evidence, rendered examination unnecessary. Emphasized the consistency of testimonies and the probative value of the MLC under Section 32 of the Evidence Act.
Relief Sought
The appellant sought acquittal on the grounds of insufficient evidence, procedural lapses, and failure to examine the victim. He requested the setting aside of the conviction and sentence.
The Legal Issue
The central question was whether the non-examination of a child victim in a PoCSO case, who is alleged to be permanently non-verbal and cognitively impaired due to cerebral palsy, renders the prosecution case unsustainable in the absence of direct testimony, when corroborative medical, testimonial, and circumstantial evidence is otherwise strong.
Arguments Presented
For the Appellant
The learned counsel argued that the prosecution’s failure to examine the victim violated the mandate of fair trial and natural justice. Relying on Sampath v. State and Bhim Bahadur Basnett v. State of Sikkim, he contended that the disability certificate (Ext. PW1/H) only mentioned locomotor disability and did not establish speech or cognitive impairment. He asserted that the prosecution could have used Section 119 of the Evidence Act to examine the victim through an interpreter or special educator, and that the absence of such attempts indicated deliberate suppression. He further challenged the MLC opinion as speculative and highlighted the FSL report’s failure to detect semen or blood as undermining the prosecution’s claim of penetration.
For the Respondent
The Additional Public Prosecutor submitted that the victim’s condition was conclusively established by the testimony of PW1 (mother), PW2 (uncle), PW5 (father), and PW11 (disability board chairman), all of whom stated the victim was non-verbal and incapable of communication. The MLC, though issued by unavailable doctors, was properly proved under Section 32(2) of the Evidence Act through PW12’s testimony on handwriting and signature. The absence of semen was irrelevant, as penetration alone suffices under PoCSO. The inconsistencies in witness accounts were minor and did not affect the core narrative.
The Court's Analysis
The Court undertook a meticulous evaluation of the evidence, beginning with the victim’s disability. It noted that while the disability certificate (Ext. PW1/H) did not explicitly state speech impairment, the unchallenged testimonies of PW1, PW2, and PW5 - all close family members - uniformly described the victim as unable to speak, walk, or eat. The Court emphasized that these statements were not cross-examined, and the accused himself never disputed the victim’s incapacity during Section 313 Cr.P.C. questioning.
"The testimony of PW11, the doctor, that a patient with cerebral palsy is normally not able to express himself by speech or gestures, was not discredited. The accused never suggested that the victim could communicate, nor did he allege that the prosecution deliberately withheld the child from the court."
The Court rejected the appellant’s reliance on Bhim Bahadur Basnett and Sampath, distinguishing them on the ground that those cases involved victims with partial or unverified disabilities, whereas here, the disability was medically certified and corroborated by multiple independent witnesses. The Court held that appointing a sign language interpreter would have been futile, as there was no evidence the victim had been trained in any formal mode of communication.
Regarding the MLC (Ext. PW12/A), the Court applied Section 32(2) of the Evidence Act, holding that the report was admissible because the examining doctors were untraceable and their attendance could not be procured without unreasonable delay. PW12, a senior forensic expert, authenticated the handwriting and signature of the absent doctors, satisfying Sections 47 and 67 of the Evidence Act. The Court clarified that while the MLC is not substantive evidence, it becomes admissible under Section 32(2) when foundational requirements are met.
"The mere absence of seminal fluid does not negate penetration. Penetration to any extent is sufficient to constitute penetrative sexual assault under Section 6 of the PoCSO Act."
The Court also dismissed the argument that PW3’s testimony was inconsistent with PW2’s. It found the accounts complementary: PW3 observed the scene first, informed PW2, who then alerted PW1. The convergence of the timeline, the locked door, the victim’s condition upon discovery, and the medical findings formed a coherent chain of circumstantial evidence.
The Court further noted that the accused’s claim of financial dispute was unsupported by any documentary or independent witness evidence, and was raised only during Section 313 questioning.
The Verdict
The appeal was dismissed. The Delhi High Court upheld the conviction and sentence under Section 6 read with Section 5 of the PoCSO Act and Section 377 IPC. The accused was sentenced to 10 years rigorous imprisonment and a fine of ₹25,000, with simple imprisonment for one year in default of payment. The Court held that the prosecution had established guilt beyond reasonable doubt through corroborative testimonial, medical, and circumstantial evidence, despite the non-examination of the victim.
What This Means For Similar Cases
Non-Examination of Disabled Victims Is Not Fatal
- Practitioners must now argue that if a victim’s incapacity to communicate is established through credible medical certification and consistent, unchallenged testimony from caregivers, the prosecution need not produce the victim in court.
- Courts will not require the appointment of interpreters unless there is evidence the victim was trained in sign language or alternative communication methods.
MLCs by Unavailable Doctors Are Admissible Under Section 32(2)
- When the examining doctor is untraceable, the MLC can be proved by a senior official who can authenticate the handwriting and signature, as per Sections 47 and 67 of the Evidence Act.
- The weight of the MLC depends on corroborative evidence; it is not conclusive but can be decisive when supported by other facts.
Absence of Semen Does Not Undermine Penetrative Assault Charges
- Prosecutors should emphasize that under Section 6 of the PoCSO Act, penetration - not ejaculation - is the key element.
- FSL reports showing no biological fluid are not exculpatory; courts have consistently held that absence of semen does not negate the offence.
Procedural Lapses Must Cause Substantial Prejudice
- Failure to comply with Section 232 Cr.P.C. (hearing before acquittal) does not automatically vitiate proceedings unless prejudice is demonstrated.
- Minor inconsistencies in witness accounts are not fatal if they do not affect the core narrative of the crime.
