External Rubbing Not Penetrative Sexual Assault Under POCSO: Patna High Court Allows Criminal Appeal, Sets Aside Section 6 Conviction In Child Sexual Assault Case
Safiya Malik
The High Court of Bihar Division Bench of Justice Rajeev Ranjan Prasad and Justice Sourendra Pandey has allowed a criminal appeal by an accused earlier convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012, setting aside the conviction and 20-year sentence and directing his release, subject to no other case being pending. The case concerned allegations that the accused sexually assaulted a child aged about five to six years. The Bench stated that contact involving only outward rubbing did not, on the evidence, amount to penetrative sexual assault under POCSO, and further concluded that where medical findings exclude penetration, a finding of guilt cannot rest exclusively on the sole, uncorroborated account of the child witness.
The matter arose from an appeal filed against the judgment of conviction dated 09.11.2022 and the order of sentence dated 15.11.2022 delivered by the Special POCSO Court, Patna, which convicted the appellant under Section 6 of the POCSO Act and sentenced him to 20 years’ simple imprisonment along with fine. The prosecution case was initiated on the basis of a written report submitted on 24.08.2020 by the mother of the minor victim. She alleged that her daughter had returned home crying and disclosed that the appellant had forcibly taken her to his room, closed the door, and sexually assaulted her. The FIR was registered under Section 376 IPC and Sections 8 and 12 of the POCSO Act. A chargesheet was later submitted under Section 376 IPC and Sections 4 and 6 of the POCSO Act.
During trial, five prosecution witnesses were examined: the victim, her parents, the investigating officer, and the doctor who medically examined the victim. Exhibits included medical records, seizure lists, FSL reports, the arrest memo, and documents relating to the FIR. The defence produced two exhibits and the court marked two additional exhibits. The victim’s statement indicated contradictions between the FIR, examination-in-chief, and cross-examination. The medical report stated absence of injury on the vaginal or labial region, noting only redness and swelling around the anal opening.
In his statement under Section 313 CrPC, the appellant stated that the allegations were false and resulted from prior disputes with the victim’s father. He also alleged misconduct by the victim’s father that had prompted him to complain to his superior officers. The defence argued that the victim admitted being tutored before deposition and that no independent witness had been examined. The State supported the conviction on the basis of the victim’s age and alleged corroboration from medical findings. The High Court evaluated the evidence, statutory presumptions, and contradictions to determine whether foundational facts had been proved.
The Court recorded that the initial written report stated that the victim had disclosed that “the appellant had rubbed his penis around her anus”, but later statements claimed that “there was abrasions not only around the anus but also in the vagina”. It stated that the mother had deposed that “blood was coming out from her vagina as well as from her anus”. The Bench observed that these developments indicated that “the prosecution version has been changed”.
Examining the medical evidence, the Court recorded that the doctor stated “no injury found on the person of the victim” and “on pelvic examination, no injury on vaginal or labial region was found”. The medical report noted that “only redness and swelling were found present around the anal opening” and concluded that “according to above findings, opinion about attempt of rape cannot be given”. The doctor admitted during cross-examination that such redness and swelling “may be caused by fall on hard surface”.
The Court further observed that the victim had admitted that “she was taught by her mother and father prior to coming for depose” and that “she gave her statement as told by ‘Daroga Ji’”. It recorded that the trial court had not tested her competency, stating: “the learned Trial Court did not put her any question so as to assess her competence in order to ascertain the importance of speaking truth”. It noted that the victim’s testimony contained improvements, including the later statement that the appellant was “rubbing his penis both in the vagina as well as her anus”, which was not supported by medical findings.
Regarding investigation, the Court recorded the I.O.’s admission that she “did not get the medical examination of the accused done” and “did not investigate on the aspect of previous enmity between the parties”. The I.O. also stated that statements of the officer and his family members were not recorded, despite their proximity to the alleged event. The Court observed that the place of occurrence lacked specific description, noting that the I.O. “has given the description of the entire premises and not of the room with specific details”.
The Court referred to Section 29 of the POCSO Act and extracted prior judgements, noting that the presumption applies only when “the prosecution proves the foundational facts… beyond reasonable doubt”. It concluded that “the prosecution has not been able to prove the foundational facts through cogent evidence” and that the defence had established its case through “preponderance of probability”.
The Court stated that “the impugned judgment and order of the sentence are set aside” after finding that the prosecution failed to establish charges under Section 6 of the POCSO Act beyond reasonable doubt. The appellant is in incarceration in connection with this case, so he will be released forthwith if not wanted in any other case. Let a copy of this judgment together with the trial court’s records be sent down to the learned trial court”.
Advocates Representing The Parties
For the Appellant: Mr. Md. Irshad, Amicus Curiae
For the Respondent–State: Mr. Dilip Kumar Sinha, APP
Case Title: Jai Krishna Yadav v. State of Bihar
Case Number: Criminal Appeal (DB) No. 205 of 2023
Bench: Justice Sourendra Pandey; Justice Rajeev Ranjan Prasad
