Refusal Of Internal Medical Examination Of Minor Victim By Her Parent Cannot By Itself Defeat Prosecution If Her Testimony Is Credible: Delhi High Court
The High Court has held that no adverse inference can be drawn merely because the mother of a child victim declined consent for an internal medical examination to avoid further trauma, where the testimony of the child is found to be truthful and consistent.
The Delhi High Court has clarified that in prosecutions under the Protection of Children from Sexual Offences Act, 2012, the credibility of the child victim’s testimony remains central, and that a parent’s refusal to subject a child to a further invasive medical procedure, particularly to prevent additional trauma, cannot by itself justify drawing an adverse inference.
The Court was hearing an appeal challenging the conviction and sentence imposed by the Trial Court for offences under the POCSO Act and allied provisions of the Penal Code.
The appellant questioned the findings on multiple grounds, including alleged inconsistencies in the victim’s statements, non-examination of certain witnesses, delay in medical examination, and the refusal of the victim’s mother to consent to an internal medical examination.
A Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja observed: “As regards the submission of the learned counsel for the appellant that an adverse inference ought to be drawn against the prosecution since the mother of the victim had refused consent for the internal medical examination of the child victim, we find no merit in the said contention. PW-3 has herself explained that she did not wish the victim to undergo further trauma by being subjected to such a medical examination. This explanation does not appear to be unnatural on the part of the mother. In any event, once the testimony of the victim is found to be truthful and consistent, the mere refusal to permit a medical examination cannot be fatal to the prosecution's case.”
Background
According to the prosecution, the minor victim disclosed the incident to her mother, following which a complaint was lodged. The child’s statement was recorded, she was medically examined, and an investigation was completed with the filing of a chargesheet.
The Trial Court convicted the appellant of aggravated penetrative sexual assault and wrongful confinement, imposing a substantial term of imprisonment.
In appeal, the appellant contended that there were discrepancies in the victim’s version, that certain witnesses had not been examined, and that the delay in medical procedures created doubt. It was further argued that the refusal of an internal medical examination warranted an adverse inference against the prosecution. The appellant also questioned whether penetration had been proved beyond a reasonable doubt.
Court’s Observations
The High Court noted that the victim, examined as a child witness, gave a consistent and coherent account of the incident. The Bench observed that minor variations in narration are natural, especially where a child recounts a traumatic experience at different stages.
Referring to Sections 29 and 30 of the POCSO Act, the Court observed that once foundational facts are established, the statutory presumption operates, shifting the burden onto the accused. The defence version, including the plea of alibi, was found unpersuasive.
Addressing the contention that an adverse inference ought to be drawn against the prosecution since the mother of the victim had refused consent for the internal medical examination of the child victim, the Court said that the mother did not wish the victim to undergo further trauma by being subjected to such a medical examination.
The Court, while further stating that the explanation does not appear to be unnatural on the part of the mother, reiterated that once the testimony of the victim is found to be truthful and consistent, the mere refusal to permit a medical examination cannot be fatal to the prosecution's case.
On the issue of penetration, however, the Court carefully analysed the various statements of the child recorded during the investigation and trial. While the child consistently described removal of clothing and contact between private parts, the Court found that the material on record created doubt as to whether actual penetration had been conclusively proved.
Granting the benefit of doubt on that limited aspect, the Bench held that the proved facts would constitute an attempt to commit aggravated penetrative sexual assault.
Conclusion
The Court set aside the conviction under Section 6 of the POCSO Act and the corresponding provision of the Penal Code, and instead convicted the appellant under Section 18 of the POCSO Act for attempt to commit aggravated penetrative sexual assault.
The sentence was reduced to ten years’ rigorous imprisonment. The conviction and sentence for wrongful confinement were upheld, with all sentences directed to run concurrently.
Cause Title: Vikas v. State & Anr (Neutral Citation: 2026:DHC:1757-DB)
Appearances
Appellant: Ashwin Vaish, V Thomas, Uttam Panwar, Shubhi, Yashaswi Dasari, Aaditya Sharma, Advocates
Respondents: Aman Usman, APP with Manvendra Yadav, Atiq Ur Rehman, Tara Narula, Shivangi Sharma, Shivanjali Bhalerao, Advocates
