Patna High Court: In an appeal against conviction under Section 376(i), Penal Code, 1860 (IPC) and Sections 4, 8 and 12, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Division Bench of Chandra Shekhar Jha* and Bibek Chaudhuri, JJ., held that vague expressions such as “bad work” cannot, by themselves, be presumed to amount to penetrative sexual assault. The Court therefore set aside the conviction under Section 376(i) IPC and Sections 4 and 12, POCSO Act, while affirming the conviction under Section 8, POCSO Act. Noting that the appellant-accused had already undergone more than 7 years in custody, the Court directed his release forthwith.
Background
The prosecution case arose from a written report lodged by the mother of the victim, alleging that her minor daughter was subjected to sexual assault while alone at home. The victim testified that the accused pulled down her pant, touched her private part, and committed “bad work”. Medical examination revealed no injuries, no laceration, and no spermatozoa.
The trial court convicted the accused under Section 376(i) IPC and Sections 4, 8 and 12, POCSO Act. On appeal, the accused argued that the conviction was based on presumption and assumption, particularly the interpretation of “bad work” as penetrative sexual assault, and that ocular evidence was not corroborated by medical evidence. However, the State contended that the victim’s testimony was consistent, semen was found on her pant, and the act amounted to aggravated penetrative sexual assault under Section 5(m), POCSO Act.
Analysis
The Court emphasised that the ocular evidence is in corroboration with the medical evidence, which negates any type of penetration, and merely because the victim stated that “some wrong” work was done with her does not imply that she was subjected to penetrative sexual assault as held by the trial court. The Court highlighted that the finding of the trial court is also questionable on the point that “semen” was found on the seized pant of the victim, therefore, the appellant must have attempted to penetrate. Since it is not convincing, and merely on the presence of semen on the pant of the victim and on the basis of the ocular evidence that some “bad work” was done, it cannot be presumed that penetrative sexual assault to some extent was committed upon her.
The Court observed that the word “bad work” is a genus to which “penetrative sexual assault” is a species as to constitute the offence specifically within the meaning of Section 3, POCSO Act. Therefore, “bad work” does not authorise the Court to presume “penetrative sexual assault” within the meaning of Section 29, POCSO Act, unless it is either corroborated with ocular or medical evidence.
The Court emphasised that no doubt the prosecution witnesses consistently said that the age of the victim is 8 years during the trial, and the victim also stated her age while recording her statement as 8 years, and even the Medical Board found the victim between the age group of 9 to 10 years. However, it was observed that the age of the victim was not disputed during the trial, therefore, her age was certainly below 12 years at the time of occurrence.
The Court further noted that it appears from the testimony of the victim that after entering into the house, while she was alone, the accused pulled down her pant and stroked and caressed her private part. Thereafter, some bad work was committed upon her and semen was also found present on her pant, which was seized by the police. The Court observed that it implies that the touch on the private part was with sexual intent within the ambit of Section 7, POCSO Act, so as to constitute the offence of sexual assault. Therefore, there is no reason to interfere with the conviction as recorded under Section 8, POCSO Act by the trial court.
Decision
The Court held that, considering the nature of the occurrence and the testimony of the victim, the case was one of sexual assault and not of sexual harassment, which is a distinct offence under the POCSO Act. Therefore, the conviction recorded under Section 12, POCSO Act did not appear convincing. The Court further held that the conviction of the accused as recorded by the trial court under Section 376(i) IPC and Sections 4 and 12, POCSO Act was bad in law, and accordingly set aside those findings.
Consequently, the Court upheld the conviction of the appellant under Section 8, POCSO Act, noting that the maximum sentence prescribed is 5 years, and even in its aggravated form, 7 years. The Court observed that the appellant had remained in custody since 26 June 2018, amounting to 7 years and 7 months. In view of this, the Court set aside the impugned judgment of conviction dated 2 August 2018 and the order of sentence dated 3 August 2018 insofar as they related to offences under Section 376(i) IPC and Sections 4 and 12, POCSO Act, as passed by the Special Judge (POCSO), Munger.
Hence, the Court allowed the criminal appeal in part and directed that, the appellant having already remained in custody for about 7 years and 7 months, be released forthwith.
[Md. Khurshid v. State of Bihar, Criminal Appeal (DB) No. 1100 of 2018, decided on 24-4-2026]
*Judgment authored by: Justice Chandra Shekhar Jha
Advocates who appeared in this case:
For the Appellant: Praveen Kumar Agrawal, Adv, Santosh Kumar Singh, Adv
For the Respondent: Abhimanyu Sharma, APP
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