Inconsistent Evidence Prevents Conviction for Penetrative Sexual Assault (S. 6 POCSO); Allahabad HC Modifies Sentence to Aggravated Sexual Assault (S. 10 POCSO) - 2025-06-04

Allahabad High Court Modifies POCSO Conviction, Citing Inconsistent Evidence on Penetration

Allahabad, May 2, 2025 – The Allahabad High Court, in a significant ruling, has modified the conviction and sentence of an appellant previously sentenced to life imprisonment under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. A division bench of Justices Saumitra Dayal Singh and Sandeep Jain found the evidence inconsistent regarding "penetrative sexual assault," reducing the conviction to the lesser charge of "aggravated sexual assault" under Section 10 of the POCSO Act and awarding a sentence of seven years.

The appellant, Heera Kol, had been convicted by the Additional District and Sessions Judge/Special Judge (POCSO) in Sonbhadra for offences under Section 376(2)(i) of the Indian Penal Code and Section 5(m)/6 of the POCSO Act, arising from an incident on July 1, 2017, involving a child victim aged about 6-7 years. The trial court had imposed a sentence of life imprisonment.

The prosecution case was based on a written report filed by the victim's maternal grandfather ('K'), who alleged that the appellant had removed the victim's underwear and inappropriately touched her at a hand-pump. Children and others raised an alarm, and the appellant was apprehended by the grandfather.

During the trial, the victim's statements evolved. While the initial FIR by the grandfather only mentioned inappropriate touching after removing underwear, the victim's statement under Section 164 Cr.P.C., recorded over a month later, added allegations of flashing his penis and uttering words expressing intent for penetrative sexual assault, and lifting her in his lap. At the trial, the victim further improved her statement, claiming the appellant had rubbed his penis on her private part and made her sit on his leg, while specifically denying any other act or attempt of "penetrative sexual assault."

The grandfather ('K'), an alleged eyewitness, corroborated the removal of underwear and inappropriate touching/embracing but did not support the allegations of flashing penis, rubbing penis on the private part, or uttering words indicating intent for penetrative assault. The medical examination report showed no external or internal injury and an intact hymen, offering no corroboration for penetrative assault.

The High Court carefully examined the definitions of "penetrative sexual assault" (Section 3 POCSO Act), "sexual assault" (Section 7 POCSO Act), and "sexual harassment" (Section 11 POCSO Act), noting how the POCSO Act grades different sexual offences with varying punishments. The Court observed that "penetrative sexual assault" explicitly requires penetration (of penis or other object/body part) or application of the mouth to private parts. "Sexual assault," on the other hand, involves touching private parts or other physical contact with sexual intent, short of penetration.

The bench highlighted the significant inconsistencies and improvements in the prosecution story, particularly concerning the crucial elements required to establish "penetrative sexual assault."

"We are mindful that the story as narrated by the prosecution has improved and varied from the point of the FIR being lodged... Vast improvements and variations were made to the prosecution story. Those are not proved through the eye witness account offered by ‘K’ and also not supported by any corroborative evidence in the shape of medical opinion etc. Clearly, no evidence of “penetrative sexual assault” was led. Further reasonable doubt exists if any attempt was made to commit such “penetrative sexual assault,” the Court observed.

The Court found that while the acts alleged in the FIR and partially corroborated by the grandfather and victim (removal of underwear, inappropriate touching/embracing) constituted physical contact with sexual intent, they did not amount to "penetrative sexual assault" as defined by law. Considering the victim was below 12 years of age, these proven facts fell under the definition of "aggravated sexual assault" as per Section 9(m) of the POCSO Act, not "aggravated penetrative sexual assault" under Section 5(m).

Referring to the gradation of offences under the POCSO Act, the bench noted that a more serious offence must be proven to award a heavier punishment. Since "penetrative sexual assault" was not proven beyond reasonable doubt, the conviction under Section 5(m)/6 POCSO Act and the corresponding life sentence were unsustainable.

The Court, therefore, modified the conviction to Section 7 read with Section 9(m) of the POCSO Act, which punishes "aggravated sexual assault." The maximum sentence contemplated under Section 10 for this offence is seven years imprisonment.

"As despicable an occurrence as it may be, the morality and ethics may not prompt the Court to either convict any offender for any offence heavier than proven and, therefore, those considerations may not allow the Courts to award sentence heavier than those prescribed by the law," the judgment stated.

The High Court noted that the appellant had already served over eight years in custody, exceeding the modified maximum sentence of seven years. Consequently, the Court ordered his immediate release, while upholding the fine imposed by the trial court.

The court partly allowed the appeal, modifying the judgment of the trial court.

The case highlights the importance of consistent evidence and strict adherence to statutory definitions, particularly in cases involving serious charges under special laws like the POCSO Act, ensuring that conviction and sentencing align precisely with the proven facts and legal provisions.

The full judgment can be accessed with Neutral Citation No. - 2025:AHC:69985-DB.