Allahabad HC Acquits POCSO Accused as Child Witness's Rape Allegation First Appeared in Section 164 Statement, Father's Testimony Confined to Assault Only
The Allahabad High Court set aside a life sentence under Section 376 IPC and POCSO, finding the child victim's rape allegation was a step-by-step improvement unsupported by medical evidence or the father's own deposition.
A Division Bench of the Allahabad High Court, comprising Justice Siddhartha Varma and Justice Jai Krishna Upadhyay, on 3 June 2026 allowed the criminal appeal of Kuntesh and set aside his conviction and life sentence imposed by the Additional Sessions Judge/Special Judge (POCSO Act), Court No. 1, Auraiya on 31 January 2019. The Trial Court had convicted Kuntesh under Section 376 IPC, Section 323 IPC, and Section 3/4 of the Protection of Children from Sexual Offences Act, sentencing him to life imprisonment and a fine of Rs. 50,000 for the rape charge, with all sentences running concurrently. The High Court found that the prosecution had failed to prove guilt beyond a reasonable doubt, principally because the allegation of rape appeared for the first time in the victim's statement recorded under Section 164 CrPC, the victim's father never mentioned rape in his own deposition, and medical evidence did not conclusively establish sexual assault.
The Case Before the High Court
The incident was alleged to have occurred on 9 May 2017 at around noon in District Auraiya. The victim, who was eight years old at the time, had gone to a shop to buy Nirma Powder. According to the prosecution, while returning she encountered the accused Kuntesh, who called her to his house, locked the door from inside, removed her clothes, and committed rape. The victim stated that blood oozed from her vagina and that Kuntesh fled when his brother Rajesh knocked on the door.
The victim's father, Daya Shankar (PW-2), lodged the initial report. That report alleged only that the accused had pressed the victim's throat, causing her to fall unconscious — an offence under Section 323 IPC. The case was later converted to one of molestation under Section 354-B IPC. An FIR bearing Case Crime No. 121/2017 was registered on 10 May 2017 at Police Station Ayana. It was only after the victim's statement was recorded under Section 164 CrPC that Section 376 IPC was added. After investigation, a charge-sheet was filed under Sections 323 and 376 IPC and Section 3/4 of the POCSO Act. The matter was committed to the Sessions Court and registered as Special Case No. 34P/2017.
The Trial Court convicted Kuntesh on all charges. He challenged that conviction before the High Court in Criminal Appeal No. 5563 of 2019.
The Legal Questions the Bench Addressed
The central question before the Division Bench was whether the prosecution had established guilt beyond a reasonable doubt when the conviction rested predominantly on the sole testimony of a child witness. The bench identified two governing principles of the Indian Evidence Act. Under Section 134, the law prioritises quality of evidence over quantity, and no minimum number of witnesses is required. Under Section 118, a child is a competent witness if she can understand questions and give rational answers.
However, the bench also drew on the Supreme Court's ruling in Panchhi and Ors. v. State of U.P. [(1998) 7 SCC 177], which held that the evidence of a child witness must be evaluated with greater circumspection because a child is susceptible to tutoring. The court must seek adequate corroboration or be entirely convinced that the testimony is natural and un-tutored.
The bench further applied the standard of a “sterling witness” as defined by the Supreme Court in Rai Sandeep @ Deepu v. State (NCT of Delhi) [(2012) 8 SCC 21]: a witness whose version is wholly reliable, natural, and inspires absolute confidence, requiring no corroboration whatsoever. The testimony must be of such impeccable quality that the court instinctively accepts it as the unvarnished truth.
The bench also noted the Supreme Court's recent reaffirmation in State (GNCT of Delhi) v. Vipin @ Lalla [2025 SCC OnLine SC 78] that while conviction in rape cases can rest on the sole testimony of the prosecutrix, courts are bound to examine such testimony with care and it must inspire confidence. The bench additionally referred to Urmila Devi v. State of H.P. and others [2025:HHC:34588-DB], where it was observed that when a prosecutrix makes improvements in her statements step by step, it becomes difficult to ascertain which version is trustworthy.
How the Bench Reasoned Through the Evidence
Justice Jai Krishna Upadhyay, writing for the bench, identified several infirmities that collectively undermined the prosecution's case.
The first concerned the conduct of the victim's father. PW-2 accompanied the victim to the police station when the initial report was lodged. Despite the victim's presence, the father reported only that the accused had pressed her throat. He did not mention any sexual assault. When he deposed before the Trial Court, he again confined his testimony strictly to what he had stated in his written complaint and said nothing about rape. He explicitly stated that he had only narrated to the police what his daughter had told him. The bench found this material omission at the earliest opportunity cast a heavy shadow of doubt on the genesis of the prosecution's case.
The bench acknowledged the Supreme Court's ruling in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384] that delay in lodging an FIR or failure to report a sexual offence at the first instance is not necessarily fatal, given social stigma and trauma. But it held that the present case presented a different factual matrix. The father's complete silence on rape — not merely at the police station but also before the Trial Court — went beyond the kind of initial reluctance that Gurmit Singh contemplates.
The second infirmity concerned the victim's own statements. In her statement recorded under Section 161 CrPC, the victim stated only that the accused had done “gandi baat” with her and did not allege any physical or sexual act. The allegation of rape appeared for the first time in her Section 164 CrPC statement before the Magistrate and was then repeated in her court testimony. The bench found these step-by-step improvements made it highly doubtful that PW-1 could be elevated to the status of a sterling witness.
The third infirmity was the medical evidence. PW-4, Dr. Seema Gupta, Medical Officer, District Hospital, Auraiya, who prepared the medical report, explicitly stated that it was not necessary that rape had been committed against the victim. PW-5, Dr. Mrityunjay Kumar, Medical Officer, Community Health Centre, Ayana, reiterated that position. The bench noted the absence of internal and external injuries, an intact hymen, and a complete absence of seminal fluids. Taken together with the other circumstances, the medical findings failed to conclusively establish or corroborate the allegations of sexual assault.
The accused, examined under Section 313 CrPC, denied all charges and stated he had been falsely implicated due to old enmity and village party factionalism. He led no defence evidence.
Outcome
The Division Bench held that the prosecution had failed to bring home the guilt of the accused beyond a reasonable doubt. Applying the principle that when two views are possible on the evidence, the view favourable to the accused must be adopted, the bench held that Kuntesh was entitled to the benefit of the doubt.
Criminal Appeal No. 5563 of 2019 was allowed. The judgment and order of conviction and sentence dated 31 January 2019 passed by the Additional Sessions Judge/Special Judge (POCSO Act), Court No. 1, Auraiya in Special Case No. 34P/2017 was set aside. Kuntesh was acquitted of all charges under Sections 323 and 376 IPC and the relevant provisions of the POCSO Act. He was directed to be released from custody forthwith, provided his detention was not required in any other criminal case. His bail bonds were cancelled and sureties discharged. The bench directed that a certified copy of the judgment, along with the trial court record, be sent to the concerned Chief Judicial Magistrate/Trial Court for compliance.