The POCSO presumption under Section 29 arises only after foundational facts are proved beyond reasonable doubt.

The appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) by the Special POCSO Court, Barasat, in Sessions Trial No. 10 (03) of 2017 arising from Special Case No. 20 of 2017; the conviction and sentence orders were dated 18 and 19 March 2025.

The prosecution alleged that on 12 February 2017 the appellant took the nine-year-old victim to a nearby place called “Lambu Bagan” on the pretext of tying a goat and sexually assaulted her.

The FIR was lodged by the victim’s mother on 15 February 2017, stating that the victim disclosed the incident only on that date.

In her testimony before the Trial Court, however, the victim gave a version materially differing from her Section 164 Cr.P.C. statement regarding where she was taken from and the surrounding circumstances.

The defence relied on contradictions, delay in reporting, prior enmity between the families, inconclusive medical evidence, non-examination of material witnesses, and irregularities in the recording of the child’s evidence.

The State argued that the victim’s testimony was sufficient for conviction and that an intact hymen did not exclude sexual assault.

1. Whether the victim’s testimony, considered with her FIR and statement under Section 164 Cr.P.C., was sufficiently consistent, reliable, and trustworthy to sustain the appellant’s conviction under Section 6 of the POCSO Act without corroboration.

2. Whether the medical evidence, surrounding circumstances, and testimony of other witnesses sufficiently corroborated the prosecution case despite the inconsistencies in the victim’s evidence.

3. Whether the statutory presumption under Section 29 of the POCSO Act could be invoked when the prosecution had not first established the foundational facts beyond reasonable doubt.

4. Whether the Trial Court’s failure to record a finding or certificate regarding the competency and understanding of the child witness affected the reliability of the trial evidence.

The Court applied Section 6 of the POCSO Act, which prescribes aggravated punishment for penetrative sexual assault in the circumstances covered by the provision, and Section 29, under which a presumption may arise only after the prosecution establishes the foundational facts of the offence.

It applied the principle that the credible and trustworthy testimony of a prosecutrix may, by itself, sustain a conviction, but corroboration may be required where her evidence contains material contradictions or does not inspire confidence.

The Court relied on Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, and Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21, for the requirement that a sole prosecutrix’s testimony must be unblemished, consistent, and of sterling quality.

It also considered State of Himachal Pradesh v. Manga Singh, Raju @ Umakant v. State of Madhya Pradesh, 2025 INSC 615, and Bharwada Bhoginbhai Hirjibhai v. State, AIR 1983 SC 753, recognising that an intact hymen or minor discrepancies is not, by itself, decisive where the victim’s testimony is cogent and reliable.

Statements under Section 164 Cr.P.C. were examined for consistency with the testimony at trial.

The Court found that the victim’s evidence did not meet the standard of a reliable or “sterling” witness.

Her trial testimony materially departed from her Section 164 Cr.P.C. statement and the FIR regarding the place from which the appellant allegedly took her and the surrounding sequence of events.

The Court also noted the inconsistency as to when the victim disclosed the incident: her trial evidence suggested disclosure to her mother on the date of occurrence, whereas the FIR stated that the mother learnt of the incident only three days later.

The medical evidence was considered inconclusive: although there was an abrasion on the vulva, the hymen was substantially intact, no age of injury was recorded, and no injuries were noted on the victim’s back or pelvic region despite the allegation that she had been forcibly pinned to the ground.

The Court further relied on evidence of prior litigation and animosity between the families, the non-examination of the “Panchayat Kaku,” and the failure of the aunt to investigate the victim’s alleged terror immediately.

Since the prosecution evidence itself failed to establish the foundational facts beyond reasonable doubt, the presumption under Section 29 could not automatically operate.

The Court additionally treated the Trial Court’s failure to record a finding that the child understood the questions and was competent to testify as a material procedural deficiency.

Collectively, these circumstances created reasonable doubt regarding the prosecution case.

The conviction orders dated 18 and 19 March 2025 were set aside, CRA (DB) 196 of 2025 was allowed, and the appellant was acquitted of all charges.

The Court directed that the appellant be released forthwith and that the Trial Court Records be returned to the Trial Court.