Absence Of Fresh Hymenal Tear 11 Days After Incident Does Not, By Itself, Negate Penetration: Delhi High Court Upholds POCSO Conviction
The Court found that the FSL report neither identified nor excluded the appellant, and held that a bare plea of tutoring cannot discredit a child’s testimony. It reduced the sentence from 20 to 15 years since it was a 2016 offence.
Justice Madhu Jain, Delhi High Court
The Delhi High Court has held that the absence of a fresh hymenal tear and of a male DNA profile, when a child is examined eleven days after the incident, does not by itself negate penetration. The Court said such findings must be seen in the context of the time gap and of the child’s specific account, and that they do not discredit that account.
The Court upheld the conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012. It found that the FSL report neither identified nor excluded the appellant, and that the plea of tutoring and the defence of false implication over an alleged loan were unsubstantiated. It reduced the sentence from 20 to 15 years of rigorous imprisonment, holding that the 2019 enhancement of the minimum sentence does not apply to an offence committed in 2016.
A Single Bench of Justice Madhu Jain observed, “…the absence of a fresh tear must be appreciated in the context of the time gap between the incident and the medical examination. A minor tear or injury may heal during such an intervening period, and the absence of a fresh injury after eleven days cannot, by itself, negate the allegation of penetration… the absence of a male DNA profile, particularly when the samples were collected eleven days after the alleged incident, cannot be treated as affirmative evidence that the alleged act did not take place or that the appellant was not involved”.
Advocate Ajay Verma appeared for the appellant and Raghuvinder Verma, APP appeared for the respondent while Advocate Meenu Saxena, appeared as amicus curiae for the victim.
According to the prosecution, the appellant and the child, then eight years old, were neighbours in Okhla. On June 5, 2016, at about 2 pm, he allegedly took her to his room and committed penetrative sexual assault, and threatened to kill her if she told anyone. The incident came to light on June 15, 2016 when she complained of pain while her mother was bathing her, and the family approached the police on June 16, 2016. An FIR was registered at Police Station Okhla Industrial Area, pursuant to which her medical examination at AIIMS found the hymen not intact, with no fresh tear.
The Special Court (POCSO), Saket, convicted the appellant under Section 6 on November 6, 2020, and sentenced him on December 10, 2020 to 20 years of rigorous imprisonment and a fine of Rs 10,000, with six months of simple imprisonment in default. The appellant challenged the conviction under Section 374(2) of the CrPC, arguing contradictions between the child’s accounts, the possibility of tutoring, delay in reporting, the absence of a fresh tear, and the FSL report, and pleading false implication over a Rs 20,000 loan.
The Court held that the child’s date of birth of March 25, 2008 was established through the school record, the mother’s affidavit and her testimony. It held that variations in the child’s account related to events before the assault and did not displace her specific allegation, and that the mere possibility of tutoring is no ground to discard her testimony. It found the eleven-day delay explained, since the incident came to light when she complained of pain while being bathed.
On the FSL report, it held that no male DNA profile was generated, so no comparison arose, and that the report was neither a mismatch nor exclusion. It rejected the loan defence, since the defence witness admitted that no repayment was demanded.
On sentence, the Court held that Section 6, as it stood on the date of the offence, prescribed a minimum of ten years extendable to life, and reduced the sentence to 15 years on proportionality. The fine and default sentence remain unchanged. The appeal was partly allowed.
Cause Title: Navratan v. The State (NCT of Delhi) & Anr. (Neutral Citation: 2026:DHC:9866)
Appearances:
Appellant: Advocates Ajay Verma, Sneha Sejwal and Smriti S. Nair.
Respondent: Additional Public Prosecutor Raghuvinder Verma, Advocates Rajesh Kumar Singh, Rohish Arora and Meenu Saxena, Amicus Curiae for the victim.