Allahabad HC Sets Aside Rape and POCSO Aggravated Penetrative Assault Conviction, Finds Medical Evidence Negates Bleeding Allegation and Penetration Unproved

The Allahabad High Court partly allowed a criminal appeal, setting aside convictions for rape and aggravated penetrative sexual assault under POCSO, and substituting a conviction for aggravated sexual assault after finding penetration unproved by the prosecution.

A Division Bench of the Allahabad High Court, comprising Justice Salil Kumar Rai and Justice Vinai Kumar Dwivedi, has partly allowed a criminal appeal filed by Sunil, who was convicted in 2022 by the Special Judge (POCSO Act)/Additional District and Sessions Judge, Varanasi, for rape under Section 376(2)(i) of the Indian Penal Code, 1860 and aggravated penetrative sexual assault under Sections 5(m) and 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. The Trial Court had sentenced him to imprisonment for the remainder of his natural life and a fine of Rs. 50,000. The High Court found that penetration — the essential ingredient of both offences — was not proved beyond reasonable doubt, principally because the medical evidence completely contradicted the prosecution's central allegation of bleeding. The Court set aside that conviction but, separating the proved portion of the victim's testimony, found the appellant guilty of aggravated sexual assault under Section 7 read with Sections 9(m) and 9(n), punishable under Section 10 of the POCSO Act. The judgment was delivered on 17 July 2026, reserved on 25 November 2025.

The Incident and Trial Court Proceedings

The First Information Report in Case Crime No. 800 of 2017 was lodged at 10:45 p.m. on 7 September 2017 at Police Station Rohaniya, District Varanasi, by the father of the victim. According to the FIR, at about 12:30 p.m. on the same day, the victim — stated to be five years old — came down crying from the terrace of the appellant's house. Blood was reportedly noticed on her undergarments and legs, and she told her mother that the appellant had taken her upstairs and done objectionable things with her before fleeing when she cried.

On the same night, the Investigating Officer had the victim's statement recorded by Woman Sub-Inspector Pushpa Singh. In that statement, marked Paper No. 7-Ka, the victim said the appellant took her to the terrace, made her lie down, positioned himself over her, and did dirty things to her. The Sub-Inspector noted that the victim was unable to say anything further. There was no mention of bleeding in this earliest statement.

The victim was examined by the Emergency Medical Officer at 11:55 p.m. on 7 September 2017. The medical report recorded no external or internal injury. The hymen was intact, examination was normal, and no bleeding or injury was found in or around the genital region. Two vaginal slides, an oral smear, and nail clippings were sent for pathological examination. The pathological report, received on 11 September 2017, disclosed no sperm, and a supplementary medico-legal report stated that no definite opinion regarding a recent sexual act could be given.

The victim's statement under Section 164 of the Code of Criminal Procedure, 1973 was recorded on 10 November 2017, almost two months after the incident. In that statement, she said the appellant had struck her genital area with his fist, opened his zipper, removed her undergarments, and that she bled, experienced pain, and her undergarments were stained with blood. The charge-sheet was submitted under Section 376(2)(i) IPC and Sections 5(i) and 6 of the POCSO Act. Special Sessions Trial No. 214 of 2017 was registered.

The prosecution examined seven witnesses: the victim as PW-1; her father as PW-2; her mother as PW-3; the examining doctor as PW-4; a clerk of the Municipal Corporation who proved the victim's birth certificate as PW-5; and two Investigating Officers as PW-6 and PW-7. The victim's date of birth was recorded as 13 October 2013 in the birth certificate proved through PW-5. The defence examined three witnesses — DW-1, DW-2, and DW-3 — who deposed about a prior water-flow dispute between the two families and a panchayat held on 20 August 2017, at which the first informant allegedly threatened to have the appellant's family members jailed.

The Trial Court convicted the appellant under Section 376(2)(i) IPC and Sections 5(m) and 5(n) read with Section 6 of the POCSO Act, invoking the statutory presumption under Section 29 of the Act. It held that PW-1's testimony was trustworthy and substantially consistent with her Section 164 statement, that the allegation of sexual assault was unchallenged in cross-examination, and that ocular evidence ordinarily prevails over medical evidence. The defence evidence was discarded on the ground that defence witnesses were inconsistent about the date and nature of the alleged prior dispute.

The Statutory Presumption Under Section 29 and Its Preconditions

Before the Division Bench, counsel for the appellant argued that the prosecution had failed to establish the foundational facts necessary to attract the presumption under Section 29 of the POCSO Act and to prove penetrative sexual assault or rape. The State responded that the victim's testimony was consistent, that medical evidence is not indispensable in a prosecution for sexual assault, and that a child victim cannot be expected to give a technically precise account.

The High Court addressed the operation of Sections 29 and 30 of the POCSO Act at the outset. These provisions embody reverse-onus clauses: once triggered, they require the accused to prove the contrary rather than the prosecution to prove guilt. The Court observed that such provisions are constitutionally conditioned upon fairness under Articles 14 and 21, and accordingly do not arise automatically upon the institution of a prosecution. They become operative only after the prosecution has first established, through legally admissible evidence, the foundational facts necessary to attract them.

The Court drew on Noor Aga v. State of Punjab (2008) 16 SCC 417, where the Supreme Court held that reverse burdens are constitutionally permissible but must be strictly construed and can operate only after the prosecution has proved the foundational facts beyond reasonable doubt. It also referred to Gorakh Nath Prasad v. State of Bihar (2018) 2 SCC 305, which held that mere registration of a case under a statute incorporating a reverse burden does not shift the onus to the accused. The Calcutta High Court decisions in Subrata Biswas v. State (2019) SCC OnLine Cal 1815 and Sahid Hossain Biswas v. State of West Bengal (2017) SCC OnLine Cal 5023 were also cited for the proposition that the presumption does not relieve the Court of its obligation to evaluate the credibility and inherent consistency of the prosecution evidence.

The Court also relied on a Division Bench of its own Court in Monu Thakur v. State of U.P. (2022) SCC OnLine All 1098, which had held that the statutory presumption does not dispense with the prosecution's obligation to prove the foundational facts by legally admissible evidence. Monu Thakur further clarified, in paragraph 36, that the presumptive provisions of Section 29 are confined to the offences specified in the POCSO Act and do not apply to offences under the IPC tried at the same trial. The Allahabad High Court adopted that view: it would be impermissible to hold an accused guilty with the aid of a reverse-onus provision in the POCSO Act and then impose, under the IPC, a punishment that the POCSO Act did not then authorise.

The Court also noted a specific sentencing irregularity. The alleged offence occurred on 7 September 2017. The POCSO (Amendment) Act No. 25 of 2019, which enhanced punishment under Sections 4 and 6, came into force on 16 August 2019. In view of Article 20(1) of the Constitution, the appellant could not be sentenced under the enhanced provisions. The Trial Court had imposed imprisonment for the remainder of the appellant's natural life under Section 376(2)(i) IPC — a sentence that had itself been amended by Act No. 22 of 2018 with effect from 21 April 2018. The Court held that the Trial Court appeared to have used the IPC to award the maximum available sentence in a manner that was arbitrary and inconsistent with the constitutional guarantees under Articles 14 and 21.

Medical Evidence, the Sterling Witness Standard, and the Bleeding Allegation

The Division Bench analysed the prosecution evidence against the legal standard for when medical findings may displace ocular testimony. It reviewed the Supreme Court decisions in Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, State of U.P. v. Hari Chand (2009) 13 SCC 542, Bhajan Singh v. State of Haryana (2011) 7 SCC 421, and Kapildeo Mandal v. State of Bihar (2008) 16 SCC 99. These decisions collectively hold that credible ocular testimony ordinarily prevails over medical opinion, but where contemporaneous medical findings are wholly inconsistent with the prosecution's ocular version on a material assertion, the inconsistency becomes a relevant circumstance and may disclose a fundamental defect in the prosecution case.

The Court then applied the “sterling witness” standard drawn from Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21. A sterling witness is one whose version remains consistent from the initial statement through deposition before the Court and whose testimony harmonises with the objective evidence, including medical and scientific evidence. A material break in that chain may deprive the witness of the character of a sterling witness and require assurance from other reliable evidence before a conviction is recorded.

The Court identified six specific deficiencies in the prosecution case.

First, in her earliest statement to Woman Sub-Inspector Pushpa Singh (Paper No. 7-Ka), the victim made no mention of bleeding, stained undergarments, or blood on her legs. She stated only that the appellant took her to the terrace, made her lie down, positioned himself over her, and did dirty things. The absence of any reference to bleeding in this first statement — and in her deposition before the Trial Court — cast serious doubt on the allegation of bleeding that first appeared in the Section 164 statement recorded two months later. Given the victim's age, the Court observed that the possibility of subsequent influence by PW-2 and PW-3 before the Section 164 statement was recorded could not be excluded.

Second, a statement under Section 164 CrPC is not substantive evidence; it may only be used to corroborate or contradict the testimony of its maker. Since the victim did not state before the Trial Court that she bled, the Section 164 statement could not be used to introduce that allegation as substantive evidence. The Trial Court erred in relying on it for that purpose.

Third, the Section 164 statement was recorded on 10 November 2017, almost two months after the incident of 7 September 2017. Despite senior police officers, including the Circle Officer and the SPRA, having visited the scene on 8 September 2017, no prompt effort was made to have the statement recorded. The prosecution offered no explanation for the delay.

Fourth, the victim's clothes were handed to the doctor for forensic examination, but no laboratory report was produced in trial to establish whether those clothes bore blood stains.

Fifth, the appellant's medical examination on 8 September 2017 recorded no injury on his person. Although this report (Paper No. 8-Ka/5) was not formally exhibited, the defence did not dispute its genuineness. Relying on Akhtar v. State of Uttaranchal (2009) 13 SCC 722 and Section 294(3) CrPC, the Court held the report could be read as substantive evidence, and that the absence of any injury on the appellant further supported the possibility that penetration and the alleged bleeding did not occur.

Sixth, PW-2 and PW-3 acknowledged that medical practitioners were available in the village and that they ordinarily consulted them. Yet, instead of promptly seeking medical attention for a child they claimed was bleeding, they first went to the Gram Pradhan and thereafter purchased antibiotics and painkillers from a nearby medical store. The Court found this conduct difficult to reconcile with the claim of bleeding in a five-year-old child, and observed that PW-2, who had ten years of experience in the healthcare sector and was employed with Punjab National Bank, could not be said to be unaware of the need to seek immediate medical help.

Turning to the medical evidence directly, the Court noted that the victim was examined within approximately ten hours of the alleged occurrence at 12:30 p.m. PW-4 testified that there was no external or internal injury, the hymen was intact, there was no vaginal bleeding, and no injury was found on or around the private parts. The Court held that in a case of penetrative sexual assault upon a five-year-old child, accompanied by the specific claim of bleeding, one would ordinarily expect some corresponding sign of bodily injury in a contemporaneous examination unless the absence were medically explained. No such explanation was offered.

In cross-examination before the Trial Court, when asked what she meant by “dirty work,” PW-1 remained silent. The Court held that this silence created genuine ambiguity about whether the act, if any, fell within Section 3 (penetrative sexual assault) or Section 7 (sexual assault without penetration) of the POCSO Act. The Trial Court's reasoning that the defence's failure to cross-examine on the specific allegation of rape operated against the appellant was also rejected. Cross-examination tests a witness; it does not prevent the defence from demonstrating that the prosecution evidence is inherently improbable or does not establish the charge. The lack of articulation by the victim may itself have limited the scope of specific cross-examination.

Separating the Proved Conduct: Conviction for Aggravated Sexual Assault

The Court declined to discard the victim's testimony in its entirety. It applied the settled principle that the rule falsus in uno, falsus in omnibus has no place in Indian evidence law, and that a court must separate the grain from the chaff.

The Court held that while the allegation of penetration and bleeding could not safely be accepted, the victim's consistent account across her initial statement to the Sub-Inspector and her deposition before the Trial Court — that the appellant took her to the terrace, made her lie down, positioned himself over her, and struck or touched her genital area — remained substantially unimpeached. The proved acts of taking a five-year-old child to the terrace, making her lie down, positioning himself over her and striking or touching her genital area admitted of no reasonable inference other than that they were committed with sexual intent.

Section 7 of the POCSO Act, as it stood on 7 September 2017, defines sexual assault as touching the vagina, penis, anus or breast of a child with sexual intent, or doing any other act with sexual intent involving physical contact without penetration. Section 9(m) covers sexual assault on a child below twelve years; Section 9(n) covers sexual assault by a person who is a relative or is living in the same or shared household as the child. Section 10 prescribes punishment of not less than five years which may extend to seven years, and fine.

The Court found the ingredients of Section 7 of the POCSO Act proved and, given the victim's age and the appellant's position relative to her household, held him liable under Sections 9(m) and 9(n), punishable under Section 10.

Order

The Division Bench set aside the judgment and order of the Special Judge (POCSO Act)/Additional District and Sessions Judge, Varanasi dated 17 June 2022 insofar as it convicted the appellant under Section 376(2)(i) IPC and Sections 5(m) and 5(n) read with Section 6 of the POCSO Act, and sentenced him under Section 376(2)(i) IPC.

The appellant was held guilty under Section 7 read with Sections 9(m) and 9(n), punishable under Section 10 of the POCSO Act. The Court sentenced him to imprisonment for the period already undergone — recorded as five years and eight months — and to pay a fine of Rs. 50,000. If the fine has not already been paid, it is to be deposited within three months. In default, the Trial Court is directed to take coercive steps in accordance with law for its recovery. The appeal was partly allowed.

The appellant was on bail at the time of the judgment and was not required to surrender. His bail bond was cancelled and sureties were discharged. The Trial Court record was directed to be remitted forthwith, with a certified copy of the judgment sent to the Trial Court for information and compliance.