POCSO’s Section 29 presumption arises only after foundational facts of penetrative sexual assault are proved.

The appellant, Sunil, was convicted by the Special Judge (POCSO Act)/Additional Sessions Judge, Agra, for offences under Sections 363, 366 and 376 IPC and Sections 3/4 of the POCSO Act in relation to the alleged removal and sexual assault of a minor girl on 19 November 2018.

The prosecution alleged that the appellant and an unidentified companion took the victim from her house in a vehicle during the night, after which the appellant and victim were allegedly apprehended near the Rohta Canal following a pursuit by relatives, villagers and police.

The victim was medically examined on the same day; she named the appellant as one of the persons involved in taking her away but stated that she did not know whether rape had been committed. The examination disclosed no external or genital injuries or signs suggestive of recent sexual violence.

In appeal, the appellant contended that he was merely the vehicle’s driver and had been falsely implicated because of a monetary dispute concerning ₹6,000.

Whether the prosecution proved that the victim was below eighteen years of age on the date of occurrence.

Whether the appellant took or enticed the victim out of the keeping of her lawful guardian so as to attract Section 363 IPC.

Whether the additional statutory intent required for conviction under Section 366 IPC—such as intent to compel marriage or force or seduce the victim to illicit intercourse—was independently established.

Whether the appellant committed penetrative sexual assault sufficient to sustain conviction under Section 376 IPC and Sections 3/4 of the POCSO Act.

Whether the appellant’s explanation that he was merely the driver and was falsely implicated due to a monetary dispute raised a reasonable doubt.

Whether the trial court properly considered the inconsistencies between the victim’s medical history, Section 164 Cr.P.C. statement and trial deposition.

What legal effect, if any, the victim’s alleged consent or willingness to accompany the appellant would have on the offences under Sections 363, 366 and 376 IPC and Sections 3/4 of the POCSO Act.

The court applied Sections 361 and 363 IPC, holding that a minor’s consent is immaterial for kidnapping from lawful guardianship, but the prosecution must still prove that the accused actively took or enticed the minor; mere voluntary accompaniment without active inducement is insufficient under S. Varadarajan v. State of Madras, AIR 1965 SC 942.

Section 366 IPC requires proof of an additional statutory intent beyond the act of taking or kidnapping.

For Sections 376 IPC and 3/4 of the POCSO Act, the prosecution must independently establish penetrative sexual assault; minority alone does not prove the sexual offence.

The prosecution bears the primary burden of proving foundational facts beyond reasonable doubt; Section 29 of the POCSO Act does not relieve it of that burden.

Section 106 of the Evidence Act cannot fill gaps in the prosecution’s case and applies only after foundational facts are proved, consistent with Shambu Nath Mehra v. State of Ajmer, 1956 SCR 199, and Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757.

The court also relied on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, and Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715, requiring circumstances such as “last seen” or recovery in the accused’s company to be firmly established.

Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393, concerning unexplained FIR delay and the risk of deliberation or embellishment.

Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371, concerning unexplained delay in recording witness statements.

Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, on the benefit of reasonable doubt.

The court accepted that the material evidence reasonably indicated that the victim was below eighteen, although no birth certificate or school record was proved and her stated dates of birth differed.

However, the prosecution failed to establish the alleged taking and recovery beyond reasonable doubt.

The victim’s statement that no one responded when she cried contradicted the relatives’ account that her cries triggered an alarm and a large-scale pursuit.

These inconsistencies were not cured by independent evidence: the alleged police handover was supported only by an interested family witness, no corresponding General Diary entry existed, the recovery site plan was not proved, no house site plan was prepared, and no vehicle seizure or ownership record was produced.

Consequently, the foundational fact of kidnapping was not established, and Section 106 of the Evidence Act could not be invoked against the appellant.

The sexual-offence convictions were independently unsustainable.

The victim’s earliest medical history stated that she did not know whether rape had occurred, and the Investigating Officer stated that she had not alleged sexual assault in her initial statement.

The medical examination disclosed no recent external or genital injury or signs of sexual violence, while the FSL report was never proved.

Although these medical findings would not by themselves disprove rape, they assumed substantial significance when considered with the victim’s later improvements and contradictions regarding the date, the alarm, her consciousness, and whether she had any memory of the assault.

Since penetrative sexual assault was not proved, neither Section 376 IPC nor Sections 3/4 of the POCSO Act could be sustained, irrespective of the victim’s age or any alleged consent.

The court set aside the conviction and sentences under Sections 363, 366 and 376 IPC and Sections 3/4 of the POCSO Act, holding that the prosecution had failed to prove the charges beyond reasonable doubt.

The appellant was acquitted of all offences.

Since he was in custody, the court directed that he be released forthwith if he was not required in any other case.