Evidence Must Be Weighed And Not Counted; Number Of Witnesses Not Determinative Of Proof: Delhi High Court Upholds POCSO Conviction

The Court was hearing a criminal appeal filed under Section 415(2) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the judgment of conviction and order on sentence passed by the trial court convicting the appellant for the offence under Section 9(m) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012.

A Single Judge Bench of Justice Neena Bansal Krishna examined whether the conviction could be sustained primarily on the testimony of the child victim and her mother, in the absence of multiple independent witnesses, and observed: “it is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted”.

The appellant was represented by Advocate Prateek Kumar, while the respondents were represented by Utkarsh, Additional Public Prosecutor.

Background

The prosecution case arose from a complaint alleging the commission of sexual assault upon a minor child. After registration of the FIR, an investigation was conducted, and a charge sheet was filed. The trial court framed charges initially for graver offences under the Indian Penal Code, 1860 and the Protection of Children from Sexual Offences Act, 2012.

Upon conclusion of the trial, the appellant was convicted for the lesser offence of aggravated sexual assault under Section 9(m), punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012, and sentenced accordingly. Convictions recorded under certain provisions of the Indian Penal Code, 1860, were also part of the trial court’s judgment.

Aggrieved by the conviction and sentence, the appellant approached the High Court, contending that the prosecution's case was unreliable as it rested primarily on the testimony of the child victim and her mother, without examination of other independent witnesses, and that material contradictions and absence of medical corroboration rendered the prosecution's case doubtful.

Court’s Observation

The High Court examined the evidence led by the prosecution, including the testimony of the child victim and her mother, as well as the medical and investigative material placed on record. The Court noted that the child victim was of tender age at the time of the incident and that her testimony had to be appreciated keeping in view her limited vocabulary and comprehension.

The Court rejected the contention that the prosecution's case must fail for want of examination of multiple witnesses. It reiterated the settled principle that the law of evidence does not mandate examination of any particular number of witnesses to establish a fact, and that conviction can rest on the sole testimony of a witness if such testimony is found to be reliable and inspires confidence.

Relying on the principle laid down by the Supreme Court that “evidence must be weighed and not counted”, the Court held that the testimony of the prosecutrix, if of sterling quality, can form the basis of a conviction even in the absence of corroboration by other independent witnesses.

The Court found that the testimony of the child victim was consistent with the version narrated by her mother and with the initial complaint. It further observed that minor variations or inconsistencies, particularly in the testimony of a child witness, cannot be treated as material contradictions to discredit the prosecution's case in its entirety.

The Bench also addressed the argument regarding the delay in lodging of the FIR and the absence of medical corroboration. It held that the delay had been satisfactorily explained and that the absence of injuries or medical evidence was not fatal in cases where the nature of the assault alleged did not necessarily result in physical injury.

The Court further held that the trial court had correctly applied the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012, after the prosecution had established the foundational facts of the offence.

The entire incident was established on cogent evidence, and the presumption of Section 29 POCSO Act arose, …the onus was on the Appellant to prove his defence, which in the present case, he has miserably failed to do so”, the Court Concluded.

Conclusion

The Delhi High Court held that the conviction recorded by the trial court under Section 10 of the Protection of Children from Sexual Offences Act, 2012, was based on reliable and cogent evidence.

The Court found no infirmity in the appreciation of evidence by the trial court and upheld the conviction and sentence under the POCSO Act.

However, the conviction recorded under certain provisions of the Indian Penal Code, 1860, was set aside on the ground that no separate charges had been framed for those offences. The appeal was accordingly dismissed in part.

Cause Title: Dharmendra Kumar v. The State Government of NCT of Delhi (Neutral Citation: 2026:DHC:34)

Appearances

Appellant: Prateek Kumar, Ankita, Prassant Kumar Sharma and Chetan Charitra, Advocates

Respondent: Utkarsh, Additional Public Prosecutor; Tanya Agarwal (DHCLSC) and Krishna Kumar Keshav, Advocates for the complainant

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