An uncorroborated improvement, contradicted by Section 164 statement and medical evidence, cannot sustain penetrative POCSO conviction.

The appellant was prosecuted for allegedly taking a 13-year-old girl, born on 17 August 2007, from near a temple on 25 January 2021 to his residence at Sathyamangalam, taking her thereafter to Mysore, and remaining with her until they were found by the police on 4 February 2021.

The prosecution alleged that the appellant, who was approximately 31 years old, had proposed marriage to the victim, forcibly taken her away, tied a thali on her, and committed penetrative sexual assault on 25 and 26 January 2021.

The victim’s mother lodged a missing-person complaint on 27 January 2021. The appellant was arrested and the victim was secured on 4 February 2021. The victim underwent medical examination; her statement under Section 164 Cr.P.C. was recorded on 10 February 2021.

The Trial Court convicted the appellant under Section 5(l) read with Section 6 of the POCSO Act, Section 9 of the Prohibition of Child Marriage Act, 2006, and Section 366-A IPC, imposing sentences including 20 years’ rigorous imprisonment under the POCSO Act.

1. Whether the prosecution proved beyond reasonable doubt that the appellant committed penetrative sexual assault punishable under Section 5(l) read with Section 6 of the POCSO Act?

2. Whether the prosecution established that the appellant contracted or participated in a child marriage so as to attract Section 9 of the Prohibition of Child Marriage Act, 2006?

3. Whether the conviction under Section 366-A IPC for taking or inducing the minor victim to go with the appellant was sustainable?

4. What relief and sentence should follow from the appellate determination?

The Court applied Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012, which penalises aggravated penetrative sexual assault; Section 9 of the Prohibition of Child Marriage Act, 2006, concerning punishment of a male adult for marrying a child; and Section 366-A IPC, concerning procuration or inducement of a minor girl to go from one place or engage in conduct with the requisite illicit-intercourse intent.

The Court also considered the evidentiary significance of the victim’s statement under Section 164 Cr.P.C., the medical and forensic evidence, and the requirement that a criminal conviction be based on reliable and sufficient proof beyond reasonable doubt.

It further referred to the need for corroboration where the trial testimony materially departed from the earlier statement and was not supported by the medical or other evidence.

The Court accepted that the victim was a minor and that she and the appellant remained together from 25 January to 4 February 2021.

However, it found material deficiencies in the proof of penetrative sexual assault. The victim’s Section 164 Cr.P.C. statement mentioned only that the appellant hugged and kissed her and did not allege penetration; the allegation of penetrative assault appeared for the first time as an improved version during trial.

The medical evidence did not disclose external injuries or evidence of recent intercourse, the forensic report detected no spermatozoa, and the doctors’ evidence did not support recent penetrative sexual assault.

In the absence of corroborative evidence, the Court held that the uncorroborated trial testimony was insufficient to sustain the POCSO conviction.

The conviction under the Prohibition of Child Marriage Act also failed because the Investigating Officer had collected no material proving that a thali had been tied or that a marriage had taken place.

Conversely, the Court sustained the conviction under Section 366-A IPC because the appellant’s taking and keeping the minor victim with him during the relevant period was established by the evidence.

Considering the period already undergone in custody, the Court modified the sentence for the Section 366-A IPC conviction to the period already undergone.

The convictions under Section 5(l) read with Section 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act were set aside, and the appellant was acquitted of those charges.

The conviction under Section 366-A IPC was affirmed, but the sentence was reduced to the period already undergone.

The Court directed that the appellant be released forthwith unless he was required in any other case.