The Bombay High Court’s acquittal in this POCSO case underscores a critical principle: conviction cannot rest on speculation or incomplete evidence, even in cases involving vulnerable victims. The judgment reinforces that procedural rigor and evidentiary consistency are non-negotiable in sexual offence prosecutions, particularly when the child victim is not examined.
Background & Facts
The Dispute
The appellant, Ramji s/o Raju Pungati, was convicted under Section 376(2)(f) of the Indian Penal Code and Sections 4, 6, 8, and 10 of the Protection of Children from Sexual Offences Act, 2012, for allegedly sexually assaulting his five-year-old niece. The prosecution alleged that on 15 October 2018, while the child was left in his care during her mother’s absence, he inserted his penis into her vagina. The mother, who lodged the complaint five days later, claimed the child disclosed the assault after persistent pain and visible swelling.
Procedural History
- 15 October 2018: Alleged incident occurred
- 20 October 2018: First Information Report (FIR) registered under Sections 376(2)(m) and 376(2)(i) IPC and POCSO provisions
- 21 October 2018: Medical examination of victim conducted; clothes and blanket seized
- 4 February 2021: Special POCSO Court convicted appellant and sentenced him to 15 years’ rigorous imprisonment
- 22 January 2026: Bombay High Court (Nagpur Bench) allowed appeal and acquitted appellant
Relief Sought
The appellant sought quashing of the conviction and sentence, arguing that the prosecution failed to prove the charge beyond reasonable doubt due to non-examination of the victim, delayed reporting, and lack of corroborative forensic evidence.
The Legal Issue
The central question was whether conviction under the POCSO Act can be sustained when the child victim is not examined in court, the medical evidence contradicts the prosecution’s version, and no incriminating forensic material is recovered.
Arguments Presented
For the Appellant
The learned advocate contended that the prosecution’s case was fundamentally flawed. The victim, though aged five, was not examined as a witness despite her statement being recorded during investigation. The medical report indicated only an attempt at penetration, not actual penetration, and no semen or blood traces were found on seized clothing. The delay in reporting, unexplained and uncorroborated, raised suspicion of fabrication. The appellant also argued that the house where the incident allegedly occurred was occupied by multiple family members, making it impossible to establish exclusive custody or opportunity.
For the Respondent/State
The Additional Public Prosecutor relied on State of Maharashtra v. Bandu Alias Daulat and Mukish v. State to argue that non-examination of a child victim is not fatal if other evidence - particularly medical and circumstantial - is conclusive. He emphasized the mother’s testimony and the medical findings of hymenal rupture as sufficient to establish guilt. He also invoked the presumption under Section 29 of the POCSO Act, asserting that the burden shifted to the accused to disprove the allegation.
The Court's Analysis
The Court undertook a meticulous review of the evidence and found the prosecution’s case riddled with inconsistencies. While acknowledging that non-examination of a child victim is not per se fatal, the Court held that the absence of the victim’s testimony must be compensated by overwhelming, consistent, and corroborative evidence.
"The testimony of the mother, though detailed, is directly contradicted by the medical history recorded at the time of examination, which stated only an 'attempt' and not actual insertion."
The Court noted that the medical officer’s report, Exhibit-31, explicitly recorded the history as "tried to insert" - a critical distinction under Section 7 of the POCSO Act, which requires proof of penetrative sexual assault for Section 6 and Section 376(2)(f). The absence of any age determination for the hymenal rupture or the pinkish hue further weakened the prosecution’s claim of recent trauma.
The Court also rejected the State’s reliance on Section 29 of the POCSO Act, observing that the presumption arises only when the prosecution establishes a prima facie case. Here, the evidence failed to meet even that threshold. The chemical analysis report, Exhibit-53, confirmed no semen, no blood (except a non-identifiable stain), and no incriminating trace on the appellant’s clothes or the blanket. The Court emphasized:
"The presumption under Section 29 cannot be invoked to fill evidentiary voids. It is not a substitute for proof."
The Court further held that the appellant’s residence was not exclusive - he lived with his maternal uncle and aunt - and the victim was not handed over to him in custody. The mother’s own testimony did not establish that the appellant was alone with the child at the time of the alleged incident.
The Verdict
The appellant won. The Court held that the prosecution failed to prove the charge beyond reasonable doubt due to the non-examination of the victim, contradictory medical evidence, lack of forensic corroboration, and absence of opportunity. The conviction and sentence were quashed, and the appellant was acquitted of all charges under the IPC and POCSO Act.
What This Means For Similar Cases
Non-Examination of Child Victim Is Not Automatically Fatal - But It Is Not Enough
- Practitioners must now demonstrate that other evidence is not merely sufficient but overwhelmingly consistent to compensate for the absence of the child’s testimony
- Courts will scrutinize whether the mother’s or guardian’s account is corroborated by medical, forensic, or independent witness evidence
- In POCSO cases, the burden remains on the prosecution to establish actus reus and mens rea - presumption under Section 29 is not a shortcut
Medical Evidence Must Align with Prosecution Narrative
- Medical reports must be interpreted with precision: "attempt" vs. "penetration" has legal consequences under POCSO
- Absence of age estimation for hymenal rupture or other injuries renders medical evidence inconclusive
- Forensic reports showing no semen, blood, or DNA on clothing or bedding will severely undermine the prosecution’s case
Opportunity and Custody Must Be Clearly Established
- In multi-occupant households, the prosecution must prove exclusive access or opportunity
- Mere presence of the accused in the same house is insufficient; the victim must be shown to have been under his sole care at the time
- Cross-examination of witnesses on household dynamics is critical to challenge the prosecution’s narrative
