Change of Victim’s Clothes Prior To Medical Examination Doesn’t Create Reasonable Doubt About Integrity Of Prosecution Evidence: Delhi High Court Upholds POCSO Conviction

The High Court was considering an appeal seeking setting aside of the judgment of conviction passed by the Additional Sessions Judge (POCSO) whereby the appellant was convicted for the commission of an offence punishable under Section 18 read with Section 5(m)(n) of the Protection of Children from Sexual Offence Act, 2012 (POCSO Act) and Section 511 read with Section 376AB of the Indian Penal Code, 1860 (IPC). The appellant was sentenced to undergo rigorous imprisonment for a period of ten years.

The Single Bench of Justice Swarana Kanta Sharma held, “As regards the non-seizure of the bedsheet and the change of clothes by the mother prior to medical examination of the victim, this Court observes that such acts, by themselves, do not create a reasonable doubt about the integrity of the prosecution evidence. The conduct of the mother, who found her nine-year-old daughter’s clothes soiled and changed them before taking her to the hospital, appears natural and humanly understandable. Moreover, the forensic report linking the DNA profile of the accused with that of the semen found on the victim’s lower garment effectively dispels the suggestion of any break in the evidentiary chain.”

Advocate R.K. Bhardwaj represented the Petitioner, while APP Naresh Kumar Chahar represented the Respondent.

Factual Background

A 9-year-old girl informed the police that she was sexually assaulted while sleeping in the presumed safe environment of the room of her Mausi, by her maternal uncle/Mama (appellant). The incident came to light when the victim’s mother (complainant) lodged a formal complaint alleging that one night, her daughter had gone to sleep in a room situated on the upper floor of her maternal Aunt’s house and in the early morning hours, she saw her brother, i.e., the appellant, coming out of the room while zipping up his pants. The complainant further noticed that her daughter was asleep and that there was some substance on her clothes. She alleged that the accused/appellant had attempted to commit rape upon the victim. Consequently, an FIR was registered under Sections 376,511 of the IPC and Sections 6,18 of the POCSO Act.

Reasoning

The Bench made it clear that Sections 29 and 30 of the POCSO Act create a statutory presumption in favour of the prosecution once the victim testifies to the commission, abetment or attempt of a sexual offence covered by Sections 3, 5, 7 or 9, and that the operation of these presumptions shifts the burden to the accused to rebut the same by raising a plausible and acceptable defence. It was noted that the foundational facts required to invoke the presumption under Section 29 of the POCSO Act are that the victim was a child below twelve years of age, she testified to the occurrence, and the accused was alleged to have committed or attempted to commit the sexual offence.

As per the Bench, the independent testimonies of the child and the mother, when read together, established the presence of the accused at the scene and the incriminating circumstances immediately following the alleged attempt to rape. “This Court observes that the forensic evidence that has been placed on record reveals that the DNA profile generated from the stains of a substance found on the lower - clothes worn by the child at the time of alleged incident had matched with the DNA profile of the accused, and this scientific evidence was not rebutted by defence evidence nor was it effectively discredited in cross-examination, before the learned Trial Court. The unchallenged concordance of ocular testimony and forensic report, in this Court’s view, materially strengthens the prosecution’s case”, it added.

The Bench observed, “This Court however, is of the opinion that the MLC recording an intact hymen does not, in the facts of the present case, negate the possibility of an attempted sexual assault. It is well-settled that the presence or absence of a hymenal tear cannot be treated as conclusive proof of either commission or non-commission of a sexual offence, especially when the charge is one of “attempt” under Section 18 of the POCSO Act. The medical findings must be read in conjunction with the totality of the evidence, particularly the presence of semen stains on the victim’s lower garment, which strongly corroborate the prosecution case.”

As per the Bench, the conduct of the mother, who found her nine-year-old daughter’s clothes soiled and changed them before taking her to the hospital, appeared natural and humanly understandable. The forensic report linking the DNA profile of the accused with that of the semen found on the victim’s lower garment effectively dispelled the suggestion of any break in the evidentiary chain. On the defence of intoxication, the Bench reiterated that intoxication absolves a person only when it is shown that it was of such degree as to render him incapable of forming the necessary mens rea. No such evidence was led. On the contrary, the presence of the accused at the spot, his conduct immediately thereafter, and the forensic evidence linking his semen to the victim’s garments established his role in the commission of the alleged offence.

Considering the consistent and credible testimonies of the victim and her parents, the corroborative forensic evidence linking the appellant to the offence, and the failure of the appellant to substantiate any plausible defence or rebut the statutory presumption under Section 29 of the POCSO Act, the Bench found no infirmity in the findings recorded by the Trial Court. Thus, the High Court dismissed the Petition.

Cause Title: Jai Mangal Mehto v. State (Govt. NCT Of Delhi) (Neutral Citation: 2025:DHC:9353)

Appearance

Petitioner: Advocates R.K. Bhardwaj, Muntazir Mehndi

Respondent: APP Naresh Kumar Chahar, SI Neelu, SI Sangeet

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