Accused Cannot Challenge in Arguments What He Never Challenged in Cross-Examination: Himachal Pradesh High Court Upholds POCSO Conviction

"To Insist on Corroboration Except in the Rarest of Rare Cases Is to Equate the Victim of Lust With an Accomplice to a Crime", Himachal Pradesh High Court has dismissed a criminal appeal challenging conviction under Section 4 of the Protection of Children from Sexual Offences Act, 2012 for penetrative sexual assault on a minor boy — holding that the victim's testimony was natural and creditworthy, that absence of anal injury was not fatal, and that an accused who fails to cross-examine a prosecution witness cannot later assail that evidence during arguments.

Justice Rakesh Kainthla, confirming the seven-year sentence awarded by the Special Judge, Una, also upheld the conviction under Section 293 IPC for showing pornographic material to a minor, finding that the discovery of a pornographic clip on the accused's mobile phone corroborated the victim's version and could not be disowned by a bare denial.

Background of the Case

On 2 September 2013, the appellant Paramjeet Singh @ Pamma came to the house of the minor victim and told his mother that her husband had sent him to repair the family vehicle. The mother handed the vehicle keys to her son and sent him along with the accused. After completing the repair, the accused took the minor to his house, where no one else was present. There, he attempted to show a pornographic video on his mobile phone and then sexually penetrated the victim's anus. The victim, perplexed and in pain, returned home at about 7:00 p.m. and disclosed the incident to his mother. The mother confronted the accused at his house, where he apologised. When the father returned in the evening and was informed, he took the child to the police station.

An FIR was registered. During investigation, the wife of the accused produced his mobile phone containing a SIM card and a memory card. A pornographic clip was subsequently found on the memory card by forensic examination. Medical examination of the victim found no injury around the anus but recorded discomfort and slight pain during digital examination, with the doctor opining that the possibility of penetration and sexual assault could not be ruled out.

The Trial Court convicted the accused under Section 4 of the POCSO Act and Section 293 IPC, sentencing him to seven years' simple imprisonment and one year's imprisonment respectively. The accused appealed.

Delay of One Day in FIR Not a Ritualistic Ground for Acquittal

The appellant argued that the FIR lodged on 3 September 2013 — a day after the incident of 2 September — was not satisfactorily explained and cast doubt on the prosecution's case.

The Court rejected this without hesitation. Citing the Supreme Court's ruling in State of H.P. v. Sanjay Kumar, (2017) 2 SCC 51, the Court reiterated that "delay in lodging the FIR cannot be used as a ritualistic formula to discard the prosecution's case, especially in sexual offences." The only inquiry is whether a satisfactory explanation has been offered.

In this case, the victim's father was absent from home when the incident occurred. The child and his mother could not be faulted for not approaching the police station in the father's absence. The Court found the delay of a single day entirely natural and insufficient to cast any doubt on the prosecution's case.

"Each Person Reacts to a Traumatic Event in His Own Way"

The appellant pressed the argument that the victim had attended school the very next day and had not narrated the incident to any classmate, neighbour, or Pradhan — conduct, it was said, wholly inconsistent with having suffered a serious sexual assault.

The Court dismissed this as an unrealistic standard of human behaviour. Relying on the Supreme Court's judgment in Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429, and its foundational observation in Rana Partap v. State of Haryana, (1983) 3 SCC 327, the Court held that "every person who witnesses or experiences a traumatic event reacts in his own special way — there is no set rule of natural reaction."

The victim had himself explained in his testimony that he was perplexed and did not understand the sequence of events. The incident involved sexual penetration — not something a minor could readily disclose to neighbours or classmates. The Court found the victim's silence in public entirely consistent with his trauma and age.

No Injury Around Anus — But Doctor Said Penetration Cannot Be Ruled Out

The most forceful medical argument of the appellant was that the examining doctor, PW-10 Dr. Vinod Dhiman, found no injury around the anal region — which, the defence argued, falsified the victim's version of penetrative assault.

The Court found this medically untenable. Dr. Vinod Dhiman had specifically stated that one finger was admitted with discomfort during digital examination, and slight pain was present while taking the rectal swab. He had categorically opined that "the possibility of penetration and sexual assault could not be ruled out."

The Court then invoked the Supreme Court's ruling in Childline India Foundation v. Allan John Waters, (2011) 6 SCC 261 — which itself drew from Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 — to reaffirm that "corroboration is not the sine qua non for conviction in sexual offences." The Court held that insisting on corroboration in every case amounts to equating the victim of sexual violence with an accomplice to a crime.

Key Evidentiary Ruling: Unchallenged Witnesses Cannot Be Assailed in Arguments

One of the sharpest legal points in the judgment concerned the recovery of the accused's mobile phone and the pornographic clip found on its memory card. The accused had claimed in his Section 313 CrPC statement that the memory card did not belong to him.

The Court found this denial wholly unacceptable. PW-4 Ramesh Kumar, the witness to the recovery of the mobile phone, had testified that the accused's wife herself produced the mobile phone containing a SIM card and a memory card, which were seized by police. Crucially, PW-4 was not cross-examined at all on this recovery.

Citing the Supreme Court's ruling in State of U.P. v. Nahar Singh, (1998) 3 SCC 561 and Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1 — which drew upon the celebrated English rule in Browne v. Dunn, (1893) 6 R 67 (HL) — the Court held that "where the testimony of a witness is not challenged in cross-examination, the same cannot be challenged during arguments."

The Court further noted that the pornographic clip was recovered from the mobile phone by the FSL — and the victim could not possibly have known about the clip's existence before it was forensically discovered. Its presence on the phone independently corroborated the victim's account of being shown pornographic material.

"Porn Clip in FIR" Argument Fails — Victim's Credit Not Impeached as Per Law

The appellant next argued that the showing of a pornographic clip was not mentioned in the FIR and was an improvement upon the original version — a ground, it was said, that should discredit the victim.

The Court rejected this argument on a precise procedural ground rooted in the law of evidence. It held that before the victim's credit could be impeached on this basis, his attention had to be specifically drawn to his previous statement in the manner prescribed under Section 145 of the Indian Evidence Act, 1872 — that is, by formally putting the relevant portions of the FIR to him in cross-examination and having them proved. This was not done.

Relying on Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 and Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757, the Court held that "courts cannot suo motu take cognisance of contradictions which have not been brought on record as per law." Since the victim's attention was never drawn to his previous statement, his credit stood unimpeached and his testimony remained unshaken.

The Court also noted that the victim's father, who filed the complaint, had passed only higher secondary level — and that a layperson could not be expected to understand the legal significance of mentioning every detail, including the pornographic clip, in the FIR.

POCSO Presumption Under Sections 29 and 30 — Foundational Facts Must Come First

The Court undertook a detailed examination of the statutory presumptions under Sections 29 and 30 of the POCSO Act, clarifying their correct legal operation.

Synthesising judgments from the Bombay, Tripura, Madras, and Punjab & Haryana High Courts, and the Supreme Court's ruling in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC 399, the Court held that the presumption of guilt under Section 29 is not absolute and cannot be invoked in a vacuum. The prosecution must first establish four foundational facts: that the victim is a child; that the alleged incident occurred; that the accused committed the offence; and, where physical injury is caused, that it is supported by medical evidence.

"Once the foundational facts are proved, the burden shifts to the accused to rebut the presumption on a preponderance of probabilities," the Court held. In this case, the victim's natural and creditworthy testimony was sufficient to establish all foundational facts. The accused, who led no defence evidence whatsoever and relied only on a bare denial, entirely failed to discharge the burden cast on him.

Finding no infirmity in the Trial Court's judgment, the High Court dismissed the appeal and confirmed the conviction under Section 4 of the POCSO Act (seven years' simple imprisonment) and Section 293 IPC (one year's imprisonment). The Court held the sentence under Section 293 IPC not excessive given that the victim was a minor and the offence grave.

Date of Decision: 18 March 2026