Failure to Prove Penetration Renders Rape Conviction Unsustainable: Karnataka High Court Modifies Conviction Under POCSO Act

"Essential Ingredients of Section 6 Not Proved Beyond Reasonable Doubt" — In a significant judgment High Court of Karnataka at Bengaluru set aside the conviction of the appellant under Section 376 IPC and Section 6 of the POCSO Act, holding that the prosecution failed to establish aggravated penetrative sexual assault beyond reasonable doubt. The conviction was modified to Section 8 of the POCSO Act (sexual assault without penetration) and the sentence reduced to five years, considering the period already undergone in judicial custody.

This decision by Justice G. Basavaraja came in an appeal filed under Section 374(2) CrPC, challenging the judgment of the Additional City Civil and Sessions Judge, FTSC-II, Bengaluru, dated 30th March 2022, which had earlier convicted the appellant for rape and aggravated penetrative sexual assault on an 8-year-old minor girl and sentenced him to 20 years of imprisonment.

 “Prosecution Withheld Best Evidence; Adverse Inference Must Follow”

The Court sharply criticised the prosecution for failing to place the medical examination report of the victim before the court, despite clear evidence that she had been taken to the hospital immediately after the incident. Citing Section 114(g) of the Indian Evidence Act, the Court observed:

“When the prosecution has failed to produce the best evidence before the court, adverse inference has to be drawn against the prosecution under Section 114(g) of the Indian Evidence Act.”

It was revealed that PW10, a police head constable, had taken the victim and her mother to Bowring and Lady Curzon Hospital, but the medical report was never exhibited, nor was the doctor examined. This glaring evidentiary lapse, according to the Court, was sufficient to cast serious doubt on the prosecution case of aggravated penetrative sexual assault.

Delay in Recording Victim’s Statement Weakens Prosecution’s Credibility

Another crucial factor considered by the Court was the inordinate delay in recording the victim’s statement under Section 164 CrPC. Despite the incident occurring on 2nd September 2015, the statement was recorded nearly two months later, on 30th October 2015. Moreover, the Investigating Officer who registered the FIR was not examined, and no explanation was provided for the delay in submission of the FIR to the Magistrate.

“Such delay and procedural lapses by the investigating authorities create reasonable doubt regarding the veracity of the prosecution’s version,” the Court remarked.

Victim and Mother’s Testimonies Show Inappropriate Sexual Conduct, But Not Penetration

While setting aside the conviction under Section 6 POCSO, the High Court did not completely absolve the accused. The testimonies of the victim and her mother, the Court held, were consistent in establishing that the accused had removed the victim’s undergarment and committed acts amounting to sexual assault. However, the evidence was insufficient to establish penetrative sexual assault, which is a prerequisite under Section 6 of the POCSO Act.

“A careful examination of the entire evidence on record makes it crystal clear that there is no sufficient, cogent, corroborative or believable evidence to convict the accused under Section 6 of the POCSO Act,” the Court held.

Accordingly, the Court convicted the accused for the lesser offence under Section 8 of the POCSO Act, which deals with sexual assault without penetration, and carries a maximum punishment of five years.

Statutory Presumption Not Rebutted by Accused Under Sections 29 & 30 POCSO Act

The Court noted that under Sections 29 and 30 of the POCSO Act, the burden shifts to the accused to rebut the statutory presumption of guilt. In this case, the accused had told the medical officer that he had only removed the undergarment of the child because it was soiled and sent her to a nearby toilet.

However, the High Court found that this explanation did not suffice to rebut the statutory presumption under the POCSO Act:

“The accused has not placed any material to discard the presumption under Sections 29 and 30 of POCSO Act pertaining to offence under Section 8,” the judgment read.

Article 20(1) Invoked: Court Holds 20-Year Sentence Unconstitutional for Pre-Amendment Offence

Interestingly, the appellant also raised a constitutional challenge, arguing that the trial court had applied the amended Section 6 of the POCSO Act, which came into force in August 2019, to an offence that occurred in 2015, thereby violating Article 20(1) of the Constitution, which prohibits ex post facto criminal legislation.

The High Court accepted this contention, stating: “In the case on hand, the incident took place in the year 2015. However, the trial court has passed the sentence for a period of 20 years, which is unconstitutional in view of Article 20(1) of the Constitution of India.”

Thus, even assuming arguendo that the offence under Section 6 had been established, the Court held that 20 years’ sentence could not have been imposed under the unamended law.

Concurrent Sentences Confirmed; Accused Ordered to Be Released After 7 Years, 10 Months in Custody

While modifying the conviction and sentence under the POCSO Act, the Court upheld the conviction under Section 506 IPC for criminal intimidation, as the threat to the child was corroborated by both the victim and her mother.

The accused was sentenced to one year of simple imprisonment for this offence, which was ordered to run concurrently with the sentence under Section 8 POCSO Act.

As per the records, the accused had already undergone incarceration for 7 years, 10 months, and 15 days, well beyond the five-year maximum for Section 8 offence. Accordingly, invoking Section 428 CrPC, the High Court directed:

“Since the accused has already completed the sentence, Registry is directed to send the intimation to the concerned Jail authority to release the accused, if he is not involved in any other case.”

This judgment is a cautionary tale for investigative agencies and trial courts alike. It reaffirms that serious charges like rape or aggravated sexual assault must be proven with unimpeachable evidence, and that procedural lapses, particularly non-production of medical evidence, can severely undermine the prosecution’s case. Moreover, the ruling fortifies the principle that punishment cannot be imposed retrospectively in violation of Article 20(1) of the Constitution.

The High Court thus struck a balance between protecting child victims under POCSO and ensuring that constitutional and evidentiary safeguards for the accused are not diluted.

Date of Decision: 13 January 2026