Uttarakhand HC Upholds 20-Year Sentence for POCSO Aggravated Penetrative Sexual Assault on Eight-Year-Old
The Uttarakhand High Court dismissed Zabir's appeal against conviction under Section 5/6 of POCSO, finding the child victim's testimony credible despite minor inconsistencies in post-incident details.
A Division Bench of the High Court of Uttarakhand at Nainital, comprising Justice Ravindra Maithani and Justice Siddhartha Sah, on 20 May 2026 dismissed the criminal appeal filed by Zabir against his conviction and sentence for aggravated penetrative sexual assault on an eight-year-old girl. The trial court — the Fast Track Special Court/Additional District and Sessions Judge, Dehradun — had convicted Zabir under Section 342 of the IPC and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012, sentencing him to six months rigorous imprisonment under Section 342 IPC and twenty years rigorous imprisonment under Section 5/6 of the Act, along with a fine of Rs. 30,000. The High Court found no ground to interfere with those findings, holding that the prosecution had proved its case beyond reasonable doubt.
The Incident and Trial Court Proceedings
According to the prosecution, on 11 January 2019, Zabir took the victim — then eight years old — into a room, disrobed himself and the child, sat on her, applied his mouth to her vagina, and bit her vagina with his teeth. The victim cried out, which drew the attention of local people who apprehended the appellant and brought him to the police station.
The victim's father, PW2, lodged an FIR the same day at 5:44 p.m. Case crime No.19 of 2019 was registered under Sections 342, 376, and 511 of the IPC and Section 10 of the Act. The victim was medically examined on the night of the incident at 9:00 p.m. The medical examination report, Exhibit A-3, recorded tenderness on the left forearm and redness in the perineal region. The victim's statement under Section 164 of the Code of Criminal Procedure was recorded on 16 January 2019.
Clothes of the victim and articles belonging to the appellant were collected and sent for forensic examination. The forensic report detected human semen on the appellant's pant. After investigation, a charge sheet was filed under Sections 342 and 376 of the IPC and Section 6 of the Act. Charges under Sections 342 and 376 IPC and Sections 5/6 of the Act were framed on 30 April 2019. The appellant denied the charges and claimed trial.
The prosecution examined seven witnesses: PW1, the victim; PW2, her father; PW3, her mother; PW4, Dr. Lata, who conducted the medical examination; PW5, Lady Constable Bindu Saini; PW6, S.I. Rashmi Rana; and PW7, S.I. Monika Manral, the Investigating Officer. Under Section 313 of the Code, the appellant stated he had been falsely implicated, claiming the victim's father had borrowed Rs. 15,000 from him and had not returned it, and that Rs. 4,500 had been removed from his room on the date of the incident, leading to a dispute.
Grounds Raised in the Appeal
Learned Amicus Curiae Mr. Akshay Pradhan, appearing for the appellant, raised several challenges to the prosecution case. He argued that the place of incident had not been consistently established: the FIR referred to a room, the victim's Section 164 statement referred to a house, and before the doctor the parents had described an open place. He contended these variations created doubt.
He also challenged the reliability of the victim's account of post-incident events. The FIR stated that local people gathered when the victim cried and caught the appellant, whereas in her Section 164 statement the victim said she returned home on her own, and before the court she said the appellant dropped her home. PW3, the mother, stated that children had brought the victim to her at a place about an hour's distance from the incident site.
On the medical evidence, the appellant's counsel pointed out that while PW1 stated blood oozed from her vagina after the appellant bit her, the medical examination report did not record active bleeding. On the forensic evidence, he argued that no semen was detected on the victim's vagina, and that the gandapani (discharge) noticed by PW3 on the victim's private parts was not detected in the forensic report. He also argued that PW7, the Investigating Officer, had recorded statements of certain boys present near the scene but had not examined them as witnesses, which he said could have been material to the question of whether the victim was taken by the appellant at all.
Learned Additional Government Advocate Mr. Pankaj Joshi, for the State, submitted that the prosecution had established its case beyond reasonable doubt, that the ocular testimony was supported by the medical and forensic reports, and that Section 29 of the Act raised a presumption of guilt once the foundational facts were proved.
The Bench's Reasoning on Penetrative Sexual Assault
The bench first set out the statutory framework. Section 3 of the POCSO Act defines penetrative sexual assault to include, under Section 3(b), insertion of any part of the body other than the penis into the vagina, urethra, or anus of a child, and under Section 3(d), applying the mouth to the vagina, anus, or urethra of a child. The bench observed that a bare reading of these provisions shows that applying the mouth to the vagina amounts to penetrative sexual assault. Section 5 of the Act provides punishment for aggravated penetrative sexual assault, and Section 6 prescribes the sentence.
Similarly, the bench noted that Section 375 IPC, as applicable, includes under clauses (b) and (d) the insertion of objects or body parts other than the penis, and the application of the mouth to the vagina, as acts constituting rape.
On the presumption under Section 29 of the Act, the bench referred to the Supreme Court's decision in Noor Aga v. State of Punjab and Another, (2008) 16 SCC 417, which held that even where a statutory presumption of guilt operates, the prosecution must first prove the foundational facts beyond reasonable doubt. Only once those facts are established does the burden shift to the accused, and the standard required of the accused is preponderance of probability, not proof beyond reasonable doubt. The bench applied this framework to the evidence before it.
Resolving the Inconsistencies
On the place of incident, the bench found no real inconsistency. The FIR referred to a room; the Section 164 statement referred to a house; and before the court the victim described the appellant's friend's house. The appellant himself, in answer to Question 13 of his Section 313 examination, had stated that he had a room partner. The site plan, Exhibit A-6, proved by PW7, confirmed the act was done inside a room. The bench concluded that the victim was consistent in her account that she was taken inside a room by the appellant while she was playing with other children.
On the post-incident sequence, the bench acknowledged the variations but held they were not material. The victim was described in the judgment as five years old at the time of her examination in court. The bench observed that with a child of that age, meticulous precision about every detail of what happened after the incident could not be expected. What mattered was that the victim consistently stated she returned home and disclosed the incident to her mother and father.
On the medical evidence, the bench accepted that the medical report did not record active bleeding from the vagina, but it did record redness in the perineal region. PW4, Dr. Lata, had ruled out infection as a cause of the redness. The bench held that the variation regarding blood was immaterial and insignificant given the overall facts.
On the forensic evidence, the bench noted that the victim had not stated that any discharge was made on her person. She had described white discharge when the appellant disrobed himself and her, but had not said semen was discharged on her. The bench held that in those circumstances, the absence of semen detection on the victim in the forensic report did not undermine the prosecution case. Human semen was, however, detected on the appellant's pant.
On the non-examination of the boys whose statements PW7 had recorded, the bench applied the settled position that it is the quality of evidence that matters, not the number of witnesses. Non-examination of those persons did not, by itself, create doubt about the prosecution case.
On the victim's additional statement in court that the appellant had inserted his finger into her anus — which she had not mentioned in her Section 164 statement — the bench held this did not damage her credibility. Her core account, including that the appellant applied his mouth to her vagina, remained consistent.
Outcome
The Division Bench held that the prosecution had proved its case beyond reasonable doubt and that the trial court had rightly convicted and sentenced the appellant. Finding no ground for interference, the bench dismissed Criminal Appeal No.96 of 2022. The conviction under Section 342 IPC carrying six months rigorous imprisonment and the conviction under Section 5/6 of the POCSO Act carrying twenty years rigorous imprisonment with a fine of Rs. 30,000 — and in default of payment of fine, simple imprisonment for a further six months — stand confirmed.