Statutory Presumption under POCSO Act Remains Inoperative Unless Prosecution Establishes Foundational Facts of Penetrative Assault

The Appellant was convicted by the Trial Court for kidnapping and repeatedly raping a minor (PW1, aged 15) between 05.03.2022 and 26.03.2022

The prosecution alleged that the Appellant enticed PW1 to elope to Haridwar and Bihar, where they purportedly married

PW1 initially stated in her Section 164 Cr.P.C. statement that she eloped voluntarily and had "physical relations" once

However, during the trial, she alleged the Appellant lured her with "rosy pictures," cheated her regarding his marital status, and forcibly raped her repeatedly

PW1 refused an internal medical examination during her MLC

The Appellant contended he was falsely implicated and believed the victim was 18 years old

1. Whether there is any infirmity in the Trial Court’s judgement convicting the Appellant under Sections 363, 366, and 376(2)(n) of the IPC and Section 6 of the PoCSO Act

2. Whether the term "physical relations" (sharirik sambandh), without further particulars or medical evidence, is sufficient to establish "penetrative sexual assault" under Section 3 of the PoCSO Act

3. Whether the prosecution proved the "taking" or "enticing" of a minor required for a conviction under Sections 361, 363, and 366 of the IPC

Section 361 of the IPC defining kidnapping from lawful guardianship and Section 366 IPC regarding kidnapping for marriage or illicit intercourse

S. Varadarajan v. State of Madras [1964 SCC OnLine SC 36], which distinguishes "taking" from a minor voluntarily accompanying an accused without inducement

Sections 3 and 5(l) of the PoCSO Act defining penetrative and aggravated penetrative sexual assault

Section 29 of the PoCSO Act regarding the statutory presumption of guilt

Reference to Moidu K. vs. State of Kerala regarding the impact of non-compliance with Section 232 Cr.P.C.

The Court observed that PW1’s testimony was inconsistent; her Section 164 statement claimed voluntary elopement and a single instance of consensual relations, whereas her trial testimony alleged inducement and repeated forcible rape

Regarding kidnapping, the Court found no evidence of active "taking" or "enticing" as PW1 admitted to joining the Appellant due to affection, bringing the case under the S. Varadarajan exception

Regarding the charge of rape/PoCSO, the Court held that the vague use of the term "physical relations" (sharirik sambandh) without specific descriptions of the act does not satisfy the technical requirements of "penetration" under Section 3 of the PoCSO Act

The lack of medical corroboration due to the victim’s refusal of an internal exam created a void in evidence

The Court clarified that the Section 29 PoCSO presumption only triggers after the prosecution establishes "foundational facts," which was not done here

Penetrative sexual assault was not proved beyond reasonable doubt due to the victim's vague testimony and the absence of medical evidence

The High Court allowed the appeal and set aside the conviction. The Appellant was acquitted of all charges under Section 235(1) Cr.P.C. and ordered to be set at liberty