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2026 Supreme(All) 1203
HIGH COURT OF JUDICATURE AT ALLAHABAD
SALIL KUMAR RAI, VINAI KUMAR DWIVEDI, JJ.
Sunil - Appellant
Versus
State of U.P. and others - Respondents
CRIMINAL APPEAL No. - 4676 of 2022
Decided On : 17-07-2026
For the Appellant : P.k. Singh
For the Respondent: Ajeet Kumar Madhesia, G.A., Shabana Nizam
Statutory reverse-onus provisions do not substitute the requirement of proving foundational facts by legally admissible evidence. Where contemporaneous medical examinations contradict the prosecution's material factual assertions, courts must reject unsupported ocular testimony, as reverse-onus clauses require proof of foundational facts before they can be activated.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 3, 5, 6, 7, 10, 29, 30 - Indian Penal Code, 1860 - Section 376(2)(i) - Code of Criminal Procedure, 1973 - Sections 164, 294(3) - Conviction for penetrative sexual assault - Foundational facts must be established by prosecution prior to application of statutory presumption under Section 29 - Absence of corroborating physical injury in medical reports when prosecution alleges significant bleeding renders ocular version highly improbable - Appellate court is duty-bound to scrutinize prosecution evidence for inherent improbabilities. (Paras 12, 13, 21, 23)
(B) Evidence - Ocular vs Medical - While credible ocular testimony ordinarily prevails, medical evidence assumes significance where it fundamentally contradicts material assertions forming the substratum of the prosecution case - Consistency/reliability of testimony is essential to qualify witness as a ‘sterling witness’. (Paras 16-18)
(C) Sentencing - Principles of proportionality - Presumptive provisions of a special statute cannot be invoked to justify conviction or sentencing under a different penal code which contains no such presumption, as it violates constitutional guarantees of fairness. (Para 11)
Facts of the case:
The appellant was convicted for aggravated penetrative sexual assault on a five-year-old child. The prosecution case alleged that the minor sustained injuries and bleeding post-incident. However, the contemporaneous medical report recorded no external or internal injuries and no signs of trauma. The victim’s statements showed gradual improvements regarding allegations of bleeding. The defense contended that the prosecution failed to prove either penetration or injury, suggesting the case originated from familial land disputes.
Findings of Court:
The Court held that the prosecution failed to establish the foundational facts necessary to invoke the statutory presumptions under the special legislation. The allegation of penetrative assault was contradicted by the contemporaneous medical findings. Consequently, the court re-evaluated the evidence to find that while the act of sexual unwanted contact was proven, the claim of penetration remained uncorroborated, leading to a modification of the conviction to a lesser offence.
Issues: Whether statutory reverse-onus provisions allow a court to convict without establishing foundational factual allegations; whether ocular evidence can be accepted when it is directly contradicted by contemporaneous medical evidence.
Ratio Decidendi: Statutory reverse-onus provisions do not replace the prosecution's fundamental obligation to prove foundational facts beyond reasonable doubt. Where medical evidence conclusively negates material assertions by the witnesses, the ocular account loses its status as reliable evidence, requiring the court to look for independent corroboration or filter out the unreliable portions of the witness's testimony.
Result: Appeal allowed in part; conviction and sentence under higher penetrative assault sections set aside, appellant convicted for sexual assault (non-penetrative) and sentenced to term already served.
JUDGMENT :
Salil Kumar Rai, J.
1.This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ("Cr.P.C.") is directed against the judgment and order dated 17.06.2022 passed by the Special Judge (POCSO Act)/Additional District and Sessions Judge, Varanasi in Special Sessions Trial No. 214 of 2017. By the impugned judgment, the appellant was convicted under Section 376(2)(i) of the Indian Penal Code, 1860 ("IPC") and Sections 5(m) and 5(n), read with Section 6, of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). He was sentenced to imprisonment for life, being imprisonment for the remainder of his natural life, and to pay a fine of Rs. 50,000/-, of which 80% was to be paid to the victim. The trial arose from Case Crime No. 800 of 2017, initially registered under Section 376 IPC and Sections 3 and 4 of the POCSO Act at Police Station Rohaniya, District Varanasi.
2. The First Information Report in Case Crime No. 800 of 2017, under Section 376 IPC and Sections 3 and 4 of the POCSO Act, was lodged at 10:45 p.m. on 07.09.2017 by the father of the victim. According to the FIR, at about 12:30 p.m. on the same day, the victim came down crying from the terrace of the appellant's house. Blood was allegedly noticed on her undergarments and legs. The victim is stated to have told her mother that the appellant had taken her upstairs and done objectionable things (‘gandaa kaam’) with her and had fled when she began to cry. The victim was stated to be five years old on the date of the incident. The written report was exhibited as Exhibit Ka-2 before the Trial Court.
3. The record further indicates that, on the same night, the Investigating Officer caused the victim's statement to be recorded by Woman Sub-Inspector Pushpa Singh. The statement, recorded on a separate sheet, bears the right-thumb impression of the victim and the signatures of her mother and of Pushpa Singh. It was marked as Paper No. 7-Ka before the Trial Court. In that statement, the victim stated that the appellant had taken her to the terrace, made her lie down, positioned himself over her, and done objectionable things (gandaa-kaam) with her. The Sub-Inspector recorded that the victim was unable to say anything further.
4. The victim was examined by the Emergency Medical Officer at 11:55 p.m. on 07.09.2017. The medical report records no external or internal injury on her body. Two vaginal slides, an oral smear, and nail clippings were sent for pathological examination. The clothes handed over to the doctor were also collected by the Investigating Officer. The pathological report, received on 11.09.2017, disclosed no sperm. In the supplementary medico-legal report, the doctor noted that no definite opinion regarding recent sexual act could be given. The medical report and supplementary medical reports were exhibited as Exhibits Ka-3 and Ka-4 before the Trial Court.
5. The appellant was arrested at 5:15 a.m. on 08.09.2017. He was medically examined at 12:13 p.m. on the same day by the Medical Officer, Community Health Centre, Misirpur, Varanasi. His medical report records no injury or other complication. The report is available on the Trial Court record as Paper No. 8-Ka/5. Although the prosecution did not formally prove it in trial and it was, therefore, not marked as an exhibit, the defence did not dispute its genuineness.
6. The victim's statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate on 10.11.2017, approximately two months after the incident. In that statement, while pointing towards her pelvic area, the victim stated that the appellant had hit her with his fist on the lower part of her body. She further stated that the appellant had opened his zipper and removed her undergarments. She also stated that she had bled, experienced pain, and that her undergarments were stained with blood. The statement was exhibited as Exhibit Ka-1 before the Trial Court.
7. Upon completion of the investigation, a charge-sheet was submitte
