POCSO conviction cannot stand where prosecution fails to reliably establish occurrence during the victim’s minority.

The appellant was convicted by the Special Court for POCSO Cases, Cuddalore, under Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”), and sentenced to ten years’ rigorous imprisonment and fine; he was acquitted of the charge under Section 313 IPC.

The victim’s date of birth was established as 4 January 2000 through her SSLC mark sheet, school admission register and transfer certificate.

Her complaint was lodged on 28 September 2019 and the FIR initially invoked Sections 417, 376 and 313 IPC. The complaint, FIR and initial Section 161 CrPC statement consistently referred to the alleged sexual intercourse as having occurred on 10 June 2019, when the victim had already attained majority.

Subsequently, a further version was introduced alleging that the relationship and sexual intercourse had commenced on 10 June 2016, when she was below 18 years of age; the offences were then altered to Sections 5(l) read with 6 of the POCSO Act.

The victim’s Section 164 CrPC statement was recorded after considerable delay and stated that she had been introduced to the appellant only when she was studying in the 12th Standard, without alleging sexual intercourse from 2016.

The appellant challenged the conviction under Section 374(2) CrPC.

Whether the prosecution established beyond reasonable doubt that the alleged sexual intercourse occurred in 2016, when the victim was below 18 years and therefore a “child” under Section 2(1)(d) of the POCSO Act?

Whether the victim’s testimony, in view of the inconsistencies between her complaint, FIR, Section 161 statement, Section 164 statement and deposition, was of sufficient reliability and sterling quality to sustain conviction without corroboration?

Whether the conviction under Sections 5(l) read with 6 of the POCSO Act could be sustained when the consistent initial prosecution version placed the alleged occurrence on 10 June 2019, after the victim had attained 18 years?

The Court applied Section 2(1)(d) of the POCSO Act, under which a “child” is a person below 18 years of age, and Sections 5(l) read with 6, which penalise aggravated penetrative sexual assault and prescribe the applicable punishment.

Although Section 29 of the POCSO Act creates a statutory presumption against the accused in appropriate prosecutions, the foundational facts constituting the offence must first be established through reliable evidence.

The Court further applied the principle that the sole testimony of a prosecutrix can sustain a conviction only when it is wholly reliable, consistent, unblemished and of sterling quality. Relying on Ganesan v. State, (2020) 10 SCC 573, and the principles quoted from Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Court held that a sterling witness must provide a consistent, unassailable account from the initial statement through trial, corroborated by the surrounding oral, documentary, medical and scientific evidence where relevant.

The Court held that the victim’s date of birth was satisfactorily established as 4 January 2000, but the crucial question was the date of occurrence.

The complaint, FIR and Section 161 statement consistently alleged intercourse on 10 June 2019, when the victim was over 18 and outside the POCSO definition of “child”.

The later insertion of 10 June 2016 was not supported by the original complaint or FIR and emerged only through a subsequent statement recorded after a substantial delay.

The Section 164 statement itself stated that the victim met the appellant only while studying in the 12th Standard and did not allege sexual relations commencing in 2016.

The evidence of the victim’s parents also contradicted the alleged four-year relationship, as they stated that they became aware of the relationship only shortly before the complaint was lodged.

The medical examination did not support the allegations of pregnancy or abortion and disclosed no external injuries or other clinical evidence of abortion.

In these circumstances, the later version regarding sexual intercourse from 2016 was treated as an inconsistent and exaggerated improvement. Since the victim’s testimony did not satisfy the sterling-witness standard, it could not independently establish that the offence occurred while she was a child.

Consequently, the statutory presumption under Section 29 could not cure the failure to prove the essential foundational fact of a POCSO offence.

The conviction and sentence under Sections 5(l) read with 6 of the POCSO Act were therefore set aside as unsustainable.

The appellant was acquitted of all charges, his bail bond was ordered to stand cancelled, and any fine paid was directed to be refunded; victim compensation already paid was not to be disturbed.

The criminal appeal was accordingly allowed.