Answer To A Leading Question Cannot Be Sole Basis For Conviction In Serious Offences Like Rape: Bombay High Court

“Consent Of A Minor Is No Consent In Law”, Bombay High Court (Aurangabad Bench) partly allowed the appeal filed by a man convicted under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Indian Penal Code (IPC). Justice Rajnish R. Vyas upheld the appellant’s conviction for kidnapping and sexual assault but set aside his conviction for rape and aggravated penetrative sexual assault, highlighting the absence of proof of penetration and expressing concern over reliance on a leading question in the prosecution’s examination-in-chief.

The Court reiterated that the consent of a minor is legally immaterial in cases of kidnapping and found the appellant guilty under Section 363 IPC. However, it ruled that the charge under Section 376-AB IPC and Section 4(2) POCSO could not sustain in the absence of credible evidence of penetration. The Court emphasized that serious criminal charges cannot be sustained on suggestive or leading questioning, especially when not authorized by the Court.

11-Year-Old Taken From Lawful Guardianship By Adult Accused

The case arose from an FIR lodged on October 11, 2021, by the mother of the victim, alleging her 11-year-old daughter had gone missing. The victim was traced two days later and was found to have spent that period in the company of the appellant, Sagar Gautam Sable. According to the prosecution, the appellant had contacted the victim via phone and met her near the Jalna Road High Court gate. He then took her on a motorbike, accompanied initially by a friend, to Karnpura and subsequently to his own house.

The Trial Court convicted the appellant for multiple offences, including kidnapping (Section 363 IPC), rape of a minor under 12 (Section 376-AB IPC), aggravated penetrative sexual assault (Section 4(2) POCSO), sexual assault (Section 8 POCSO), and sexual harassment (Section 354-A(2) IPC), sentencing him to 20 years' rigorous imprisonment.

Whether “Taking” A Minor With Her Will Can Still Amount To Kidnapping

The principal legal issue before the High Court was whether the accused’s actions amounted to “taking” a minor from lawful guardianship under Section 361 IPC, which defines kidnapping. The appellant had relied on the Supreme Court's ruling in S. Varadarajan v. State of Madras, AIR 1965 SC 942, arguing that since the minor came on her own volition after telephonic communication, he neither “took” nor “enticed” her away.

However, Justice Vyas categorically distinguished Varadarajan, observing that:

“The accused, being a 25-year-old, actively took the minor from her guardianship, facilitated her travel, and kept her at his house without informing her family. The initial proposal came from the accused, and there was no justification for not returning the child to her home.”

The Court rejected the defence that the victim left voluntarily, emphasizing that under Section 361 IPC, the consent of a minor is irrelevant. The Court held:

“I come to the conclusion that the appellant has taken away the victim from lawful guardianship and, therefore, offence under Section 363 of the IPC is rightly made out.”

No Proof Of Penetration: Conviction Under Section 376-AB IPC & Section 4(2) POCSO Set Aside

Turning to the conviction under Section 376-AB IPC and Section 4(2) of the POCSO Act (which penalizes penetrative sexual assault), the Court found the evidence insufficient to prove rape beyond reasonable doubt.

The prosecution’s key evidence was the testimony of the child victim (PW-1), who had stated during her examination-in-chief:

“He removed my clothes after bringing me in down room and had forceful physical relations with me.”

However, the Court scrutinized this statement closely and noted:

“It is necessary to mention here that the said answer was given in the examination-in-chief which, prima facie, is outcome of the question put by the learned prosecutor therein… This being the result of a leading question asked in examination-in-chief, without even obtaining permission of the Court, is required to be ignored.”

Justice Vyas stressed that convictions under serious offences like rape cannot rest on suggestive testimony, particularly when unsupported by medical evidence or corroboration.

Medical Officer PW-5 testified that:

“There was no injury on hymen… no evidence for fresh injury, abrasion, etc.”

Taking the ocular and medical evidence together, the Court found:

“Nothing has been uttered by the victim about penetration, insertion or manipulation. In absence of categorical assertion and medical corroboration, the charge under Section 376-AB IPC and Section 4(2) POCSO Act cannot be sustained.”

Accordingly, the appellant was acquitted of those offences.

Sexual Assault And Harassment Conviction Upheld: Physical Contact With Sexual Intent Proven

Despite acquittal under the graver charges, the Court found the prosecution had proved the offence of sexual assault under Section 8 of POCSO and sexual harassment under Section 354-A(2) IPC.

The Court accepted the victim’s statement that the accused took her to a separate room at night and attempted to make physical relations against her will. This, the Court held, amounted to sexual assault as defined in Section 7 of POCSO, which penalizes “physical contact with sexual intent without penetration.”

“This witness i.e. victim/PW-1 in her testimony has categorically stated that when she was sleeping near the mother of appellant, at that time, the appellant woke her and took her to room and tried to have physical relationship which was refused, then he attempted to make forcible physical relations with her.”

Furthermore, the Court held that the presumption under Sections 29 and 30 of POCSO (which place the burden on the accused to disprove culpability) was not rebutted.

“In answer to the queries made by the Court while examining the accused under Section 313 CrPC, no convincing explanation for false implication was given by the accused.”

In absence of any defence or rebuttal, the Court concluded:

“I do have any option but to come to the conclusion that the offence of sexual assault under Section 8 of the Act of 2012 and Section 354-A of the IPC are proved by the prosecution beyond reasonable doubt.”

Kidnapping And Sexual Assault Proved, But Rape Charge Fails The Evidentiary Test

Summing up the judgment, the Bombay High Court reaffirmed the distinction between kidnapping and enticement, clarified the evidentiary threshold required for rape and penetrative sexual assault, and emphasized the limits of leading questions in criminal trials.

The Court partly allowed the appeal. It upheld the appellant’s conviction under Sections 363, 354-A(2) IPC, and Section 8 POCSO, but set aside the convictions under Section 376-AB IPC and Section 4(2) of the POCSO Act due to lack of proof of penetration. It also directed that the fine amount imposed under Section 4(3) POCSO, intended for victim compensation, be adjusted accordingly.

Justice Vyas also commended Mr. Vishal Chavan, Legal Aid Counsel for the victim, for his diligent and effective representation.

Date of Decision: 12 January 2026