2026 INSC 1008

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 1 of 42

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO S._______ OF 2026

(Arising out of SLP(Crl.) Nos. 21271-72 of 2025)

DEEPAK IN JC …APPELLANT

VERSUS

STATE GOVT. OF NCT DELHI …RESPONDENT

J U D G M E N T

N.V. ANJARIA, J.

Leave granted.

2. These two appeals preferred by the appellant -

convict raise challenge to judgment and order dated

03.07.2025 passed by the High Court of Delhi

1, which was

a common judgment delivered in Criminal Appeal No.1029

of 2023 and Criminal Miscellaneous (Bail) No.1732 of 2023.

Thereby, the High Court dismissed the appeals, in turn,

1

Hereinafter, “High Court”

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confirmed judgment and order dated 21.08.2023 of the

Court of Additional Sessions Judge-01, (Designated Special

Court under the Protection of Children from Sexual Offences

Act, 2012), South-East, Saket Courts, New Delhi

2 in

Sessions Case No.26 of 2016.

2.1 The trial court held the appellant guilty of the

offences punishable under Section 363, Indian Penal Code,

1860

3 and under Section 6 of the Protection of Children from

Sexual Offences Act, 2012

4. It, however, acquitted the

appellant for the offence punishable under Section 506, IPC.

2.2 For the conviction recorded under Section 6 of

POCSO Act, the appellant came to be sentenced to undergo

rigorous imprisonment for 10 years and to pay a fine of

Rs.5,000/- with default clause to suffer simple

imprisonment for 6 months. In respect of the offence

punishable under Section 363, IPC, the sentence awarded

to the appellant was requiring him to undergo rigorous

imprisonment for 1 year and to pay a fine of Rs.3,000/- with

2

Hereinafter, “trial court”

3

Hereinafter, “IPC”

4

Hereinafter, “POCSO”

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default clause to suffer simple imprisonment for 2 months.

The trial court directed that out of the total fine of

Rs.8,000/- as above, an amount of Rs.7,000/- shall be paid

to the victim by way of compensation.

3. The prosecution story is revealed from the

complaint dated 11.12.2015 lodged at Kalkaji Police Station

by the mother of the victim. It was stated therein inter-alia

that the complainant’s daughter aged about 2.5 years, while

playing in the evening at around 05.30 pm on 09.12.2015,

went to the jhuggi of the appellant which was located next

to the complainant’s jhuggi. As her daughter did not return

home for long, the complainant (PW-5) went to Sarvodaya

Camp Park in search of her daughter where she came to

know from her brother-in-law that the appellant had taken

her to Hans Raj City Park for outing.

3.1 It was stated in the complaint that despite the

brother-in-law of the complainant called the appellant

asking him to bring back the victim, the victim did not

return even after passage of more than 15 minutes. The

complainant reached Hans Raj City Park in a taxi at about

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06.30 pm. At that time, she saw the appellant along with her

daughter. She took her daughter to home, where her

daughter went asleep. It was stated that upon waking up at

around 07.00 pm, she started crying, pulling her pyjami

(Exh.6).

3.1.1 According to the complainant, when she removed

the pyjami of her daughter, blood was noticed and further

that the victim-daughter told the complainant that the

appellant had put his private part inside her private part.

The complainant called her husband, who came at about

09.30 pm. Dr. Rajesh Parthasarthy (PW -1), who was a

private doctor, was consulted who advised them to visit the

police station, it was stated. It was alleged that the appellant

and his family had been threatening them to settle the

matter.

3.2 First Information Report

5 No.1085 of 2015 was

registered on 11.12.2015 for the offences punishable under

IPC and POCSO. Statement under Section 161, Code of

5

Hereinafter, “FIR”

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Criminal Procedure, 1973

6 of the victim, though was sought

to be recorded, the victim could not say anything because of

her tender age of 2.5 years. Statements of the father and

uncle (chacha) of the victim were thereafter recorded under

Section 161, Cr.PC. Statement of the complainant (PW-5)

under Section 164, Cr.PC was recorded.

3.2.1 A chargesheet came to be filed on 24.03.2016 for

the offences punishable under Sections 363, 376 and 506,

IPC and Sections 4 and 5 of the POCSO Act. The trial court

framed the charge on 12.07.2017 in respect of the offences

punishable under Sections 363 and 506 , IPC and under

Section 4 of the POCSO Act. The prosecution, in course of

the trial, examined in all 13 witnesses.

3.3 The trial court, in convicting and sentencing the

appellant, took the view that the evidence of the mother of

the victim-complainant (PW-5) stood corroborated by Dr.

Rajesh Parthasarthy (PW-1), as according to the trial court,

the narration by both matched with each other. The trial

court was also of the view that the other evidence on record

6

Hereinafter, “Cr.PC”

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supported the prosecution story and that the evidence of

uncle of the victim (PW-6A) was also supportive, negativing

the defence argument that the uncle (chacha) of the victim

was an interested witness. The trial court relied on the

judgment of this Court in Seeman alias Veeranam vs.

State, By Inspector of Police

7

to accept the evidence of

PW-6A for furthering the prosecution story in addition to the

evidence of PW-5 and PW-1.

3.4 While confirming the conviction and sentence of the

appellant, the High Court proceeded on the same reasoning

as that of the trial court to observe that the evidence of

mother of the victim (PW-5) and Dr. Rajesh Parthasarthy

(PW-1) was corroborative with each other and that the

incident of the appellant taking the victim to the park etc.

was revealed from the deposition of uncle of the child (PW-

6A). The High Court recorded the finding that the victim was

taken away from the legal guardianship and held that the

offence under Section 361, IPC was made out . The High

Court was of the view that the alleged contradictions in the

7

(2005) 11 SCC 142

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 7 of 42

statement of the witnesses were only on peripheral aspects

and did not have the effect of discrediting the prosecution

case.

3.4.1 The High Court referred to Section 29 of the POCSO

Act, in particular, which raise a statutory presumption

about the commission of the offence under POCSO Act. After

discussing the evidence along with, took the view that the

legal presumption of guilt would arise against the accused.

The High Court stated that the burden would shift on the

accused to rebut the presumption. The age of the victim and

the attendant circumstances became aggravating factors as

per Section 5(m) of the POCSO Act attracting enhanced

punishment under Section 6 of the POCSO Act, stated the

High Court. The contents of the FSL report were not

accepted by the High Court on the ground of intervening

time, stating that it was quite possible that the mother may

have washed the pyjami of the victim.

4. Heard learned advocate on record Mr. Pulkit

Prakash with other learned advocates for the appellant and

learned Additional Solicitor General Mr. Davinder Pal Singh

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assisted by other appearing learned advocates for the

respondent, at length.

4.1 Learned counsel for the appellant elaborated the

contradictions in the ocular evidence relating to the details

of the occurrence of the incident to further assert that the

medical evidence did not support the prosecution case. On

the other hand, on behalf of the respondent , learned

Additional Solicitor General vehemently supported the

impugned judgment and order of the High Court by

submitting that the appellant was guilty of serious offence

of committing rape on a girl of tender age and was rightly

convicted and sentenced under the provisions of the POCSO

Act and IPC. According to the submissions of the

respondent, the discrepancies in the evidence could not be

said to be of minor nature, and did not discredit the

prosecution case.

5. Now, the prosecution evidence in this case, more

particularly about accounting for and narrating the alleged

incident is comprised of the testimony of mother of the

victim-complainant (PW-5), uncle (chacha) of the victim or

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brother-in-law (devar) of the complainant (PW-6A) and Dr.

Rajesh Parthasarthy (PW-1) who was the private doctor to

whom the victim was stated to have been taken for the first

time after the occurrence of alleged incident.

5.1 The medical evidence, in addition to the testimony

of PW-1, included the evidence of Dr. Varnit, who was the

only doctor who physically examined the victim. Dr. Mansi

(PW-7), who appeared on behalf of Dr. Varnit had examined

the victim. Dr. Naresh Kumar (PW-8), who was the FSL

expert examined. Dr. Haritha Maddirala (PW-9) identified

the signature of Dr. Varnit. FSL report was Ex.PW-8/A.

Constable Kusum (PW-3) accompanied the Investigating

Officer to AIIMS hospital on 11.12.2015 for conducting the

medical examination of the victim and claimed to have

witnessed the doctor conducting the examination.

5.1.1 Also examined was one Ram Bahori, ASI (PW-4) who

stated about the registration of the FIR. Head Constable

Dharmender (PW-6) seized the pyjami of the victim having

joined the investigation with Investigating Officer on

11.12.2015. Inspector Krishan Kumar (PW -10) conducted

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the inquiry pursuant to the direction of the court regarding

identification of the pyjami of the victim. Inspector Pankaj

Gulia (PW-11) conducted inquiry and prepared the report.

Inspector Pawan Kumar (PW-12) was examined who inter-

alia stated that pursuant to the directions of the court, he

sought clarification from the AIIMS regarding FSL findings

and the alleged blood seen by the mother of the victim and

Dr. Rajesh Parthasarthy (PW-1).

5.2 Eying the evidence on record analytically, the

version of PW-5 was that, on the day of incident, her

daughter had been playing in front of her jhuggi at around

05.30 pm, she went to the jhuggi of the appellant which was

quite nearby to her jhuggi and did not return back.

According to PW-5, she contacted her devar (PW-6A) to know

that the appellant had taken her daughter to Hansraj City

Park. PW-5 and PW-6A both went to Hansraj City Park and

when reached there, according to say of PW-5, she saw the

appellant coming back along with her daughter. When PW-

5 asked the appellant as to why he had taken her daughter,

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the appellant told her that he had to lit fire in the park, that

is why he took her daughter with him.

5.2.1 According to PW-5, on reaching home, the victim

went asleep, woke up at around 7.30 pm and asked PW-5 to

take her to toilet where she could not pass her urine and

started crying. According to the victim, stated PW-5, the

appellant had committed sexual act with her by contacting

her private part. The say of PW-5 was that blood was noticed

on the pyjami of her daughter. PW-5 stated that she called

her husband and went to the dispensary of Dr. Rajesh

Parthasarthy (PW-1) at around 9.30 pm in the night.

5.2.2 Dr. Rajesh Parthasarthy (PW-1) to whom the victim

was stated to have been taken, deposed in his testimony that

one woman along with her minor daughter had come to his

place at about 4-5 pm and that the daughter had worn a

pyjami. It was further stated by PW-1 that blood spots were

noticed on the front portion of the pyjami. PW-1 stated that

he did not prepare any treatment papers nor treated the

victim for the reason that the patient had not come for any

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medical treatment and that there was no need for any first-

aid to be provided to the victim child.

5.2.3 Juxtaposing the versions of PW-5 and PW-1, the

account narrated by both of them revealed manifest

contradictions. While PW-1 stated that the victim was

brought by PW-5 at about 4/5 pm on 09.12.2015 and that

PW-5 was the only one who accompanied the victim, PW-5

deposed that she had gone to PW-1 at 9.30 pm on

09.12.2015 and that she went to PW -1 along with her

husband. While the doctor (PW-1) mentioned the time of the

coming of PW-5 with the victim at about 4/5 pm, but PW-5

mother’s say was that they had gone in the night at 9.30 pm.

This inconsistency could not be brushed aside to be a minor

kind or insignificant in nature more particularly when read

with the facts of the case and other attendant evidence.

5.2.4 Even independently, the evidence of PW-5 was

crippled with the contradictions and omissions. She gave

her evidence before the court in an embellished way with

material improvements over her prior and initial account,

particularly in light of what she stated in her statement

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under Section 164, Cr.PC. PW-5 stated in her deposition

before the court that the accused told her that he had lit fire

in the park and took the victim to the park, for that reason.

In the cross-examination, PW-5 also made a specific

statement that the victim had told her that the appellant had

committed a penetrative sexual act with her. However,

noticeably these two facts and statements were not made in

the FIR which was the first account given complaining about

the offence.

5.2.5 A close reading of the evidence of PW-1 raises

doubts as to the credibility of what he said. PW-1 stated that

he did not prepare any case papers and that PW-5 and the

victim did not come for any medical treatment. While

according to PW-1, he himself informed by telephone Kalkaji

Police Station that a child had come who was a victim of

sexual assault, none of the police witnesses confirmed in

their evidence about receiving any such call from PW-1. The

incident allegedly took place on 09.12.2015 whereas the FIR

was registered on 11.12.2015. The deposition of PW-1 in its

very nature, coupled with the version of PW-5, in stating

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facts, reeled into unreliability and remained devoid of

trustworthiness.

5.3 Turning now to the medical evidence on record, Dr.

Rajesh Parthasarthy (PW-1), who stated to have examined

the victim in the first instance on 09.12.2015, noticed

reddishness on her pyjami. The evidence of PW-1 did not

inspire creditworthiness for at least two good reasons.

Firstly, there were discrepancies in his own testimony, and

secondly, his version remained contradictory with other

evidence. While PW-1 noticed reddishness on the private

part of the victim, Dr. Varnit (PW-9/A) found no injury, nor

any bloodstains present over the vulval area of the victim.

Dr. Varnit further stated that the hymen of the victim was

intact without any abnormality.

5.3.1 While the prosecution case was that the accused

had committed a penetrative assault on the victim, Dr.

Naresh Kumar, FSL Expert (PW-8) deposed that 7 parcels

which were received at the Forensic Science Laboratory,

Rohini and which were subjected to biological and DNA

tests, no semen was detected on any of those exhibits. There

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was no male DNA which could be isolated from the relevant

exhibits, PW-8 testified. The FSL report was proved by the

evidence of PW-8, who, in his cross-examination, clarified to

state that the blood could not be detected on the pyjami of

the victim. In other words, the say of PW-1 and PW-5 about

noticing the blood spots on the pyjami of the victim was

falsified, and those aspects were dispelled by the said FSL

expert as well in the FSL examination itself.

5.4 In a given state of facts, it may be a true proposition

that the absence of injury or absence of semen does not ipso

facto disprove the rapist act. State of U.P. vs. Babul Nath

8

,

was relied on by the prosecution for the aforesaid

proposition. However, the instant case has a conspicuous

differentiating factor inasmuch as the doctor’s evidence, as

highlighted above, read with the FSL report, completely

ruled out the possibility of any penetrative act.

5.4.1 Even Dr. Mansi of AIIMS (PW-7) who appeared on

behalf of Dr. Varnit and examined the victim in terms stated

that though the child was brought with alleged history of

8

(1994) 6 SCC 29

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 16 of 42

sexual assault and pain in the vulval region, however, the

physical examination revealed that nothing was abnormal

or unusual. Dr. Mansi identified the handwriting and

signature of Dr. Varnit reinforcing the proof of the expert

medical opinion of Dr. Varnit.

5.4.2 In the totality of medical evidence emerging, it

would indeed not be in the realm of guesswork, if it is

concluded that even if the theory of reddishness is accepted

for the sake of as furthered by PW-5, it could have occurred

for any other reason. None of the medical experts suggested

any abnormality much less noticing of blood on the pyjami

or supporting the theory of reddishness. The medical

evidence comprises of FSL Report and the testimony of the

expert doctors individually and collectively hardly supported

the prosecution case.

5.5 Having regard to the telling medical evidence as

above, this Court is not inclined to believe the say of PW-1

and PW-5 that blood spots were found on the pyjami of the

victim or that the reddishness on her private part indicated

the sexual aggression on her on part of the accused. The

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reading of evidence indicated not merely an absence of

penetration but negatived the very theory of sexual assault.

5.6 Rai Sandeep alias Deepu vs. State (NCT of

Delhi)

9

, though was a case of gangrape, the conflict in the

oral as well as forensic evidence in that case regarding

alleged forcible sexual intercourse, is comparable to the

facts of the present case. The prosecution story in that case

was that the accused had knocked the door in the night at

about 01.30 am, entered the house, and committed

gangrape, however, only an abrasion of minute nature was

found on the right side of the neck of the victim below the

jaw and no other injury on the private part of the prosecutrix

was noticed. Like in the present case, there were material

variation in the complaint and what was deposed thereafter

by the witnesses, in that case by the prosecutrix.

5.6.1 In Rai Sandeep alias Deepu (supra), this Court

stated that although in a given case the sole evidence of the

prosecutrix can be the basis to prove the offence, the

evidence has to be of sterling quality. If the witness is not

9

(2012) 8 SCC 21

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 18 of 42

found to be a sterling witness, the court would be slow to

rely on the version of that witness especially when they

contain contradictions within or stand with non-

corroboration from the other evidence.

5.7 The observations in Rai Sandeep alias Deepu

(supra) also repeated in Ganesan vs. State represented by

its Inspector of Police

10

as to who can be said to be a

sterling witness are relevant to be noticed for discarding the

testimony of PW-5 as not creditworthy, extracting from Rai

Sandeep alias Deepu (supra),

“…..the “sterling witness” should be of a very high

quality and calibre whose version should, therefore,

be unassailable. The court considering the version

of such witness should be in a position to accept it

for its face value without any hesitation. To test the

quality of such a witness, the status of the witness

would be immaterial and what would be relevant is

the truthfulness of the statement made by such a

witness. What would be more relevant would be the

consistency of the statement right from the starting

point till the end, namely, at the time when the

witness makes the initial statement and ultimately

before the court. It should be natural and

consistent with the case of the prosecution qua the

accused.”

(Para 22)

10

(2020) 10 SCC 573

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5.7.1 It was observed that there should be no

prevarication in the version of such a witness. The witness

should be in position to withstand the cross-examination of

any length and howsoever strenuous it may be and under

no circumstance should give room for any doubt as to the

factum of the occurrence, the persons involved, as well as

the sequence of it.

5.7.2 It was further stated that the test to be applied is

akin to one applied for appreciating the circumstantial

evidence, stated this Court,

“….Such a version should have co-relation with

each and every one of other supporting material

such as the recoveries made, the weapons used, the

manner of offence committed, the scientific

evidence and the expert opinion. The said version

should consistently match with the version of every

other witness. It can even be stated that it should

be akin to the test applied in the case of

circumstantial evidence where there should not be

any missing link in the chain of circumstances to

hold the accused guilty of the offence alleged

against him. Only if the version of such a witness

qualifies the above test as well as all other such

similar tests to be applied, can it be held that such

a witness can be called as a “sterling witness”

whose version can be accepted by the court without

any corroboration and based on which the guilty

can be punished.”

(Para 22)

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5.8 In the present case, the prosecution projected the

mother of the victim (PW-5) to be a prime witness for having

the knowledge and occurrence of the incident. However, it

could be well said in light of the evidence of PW-5 discussed

above along with the other attendant evidence, the evidence

of PW-5 could not be treated as the evidence of a sterling

witness.

5.9 The various gaps in the testimony of PW -5,

contradictions with evidence of other witnesses and the FSL

and medical evidence revealing quite contrary, the

prosecution story led by the evidence of PW-5 never

remained intact but miserably descended to the stage of lack

of proof. In any case, the prosecution could not establish the

guilt of the accused beyond reasonable doubt.

6. The case does not end here. Stood in the

background of the demolished prosecution case, a probable

and acceptable defence version emanating from the

evidence. It was the stand of the defence that the whole

complaint and the allegations therein were generated and

acted upon by the complainant out of enmity. In this regard,

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the statement of PW-5, that is the mother of the victim with

regard to her cross-examination may be noticed. PW-5

stated and admitted in her cross-examination that there was

a common water connection for four houses in the cluster of

jhuggis which included the house of PW -5. She further

stated that the jhuggi of accused Deepak was situated

adjoining to her jhuggi and at that time 24 hours water

supply through the said water connection was not available

and that they used to store the water in various utensils and

containers.

6.1 Although it was sought to be suggested by PW-5

that she did not keep the utensils and containers outside the

jhuggi of accused, the factum of quarrel between the side of

the complainant and the side of the accused over the water

sharing and water fetching clearly came out from the cross-

examination of PW-5. The case of the defence that it was this

enmity relating to water sharing between the two sides led

to trigger the action on the part of the complainant in filing

the complaint with wrong and baseless allegations. The

factum of common water connection amongst the four

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houses including the house of PW-5 etc. and quarrel in that

regard were the proved aspects.

6.2 In wake of the inconsistent prosecution evidential

version, further weakened by non -supportive medical

evidence, the story of previous enmity on account of water

quarrel could gain cogent ground to become believable and

acceptable. It could therefore be said that the complaint was

a motivated one filed with ill-intention and out of enmity.

7. Proceeding further, in the instant case, a close

examination of the manner of appreciation of evidence and

the consequent findings recorded by the Trial Court go to

show that the Trial Court concluded that the prosecution

could prove that the appellant-accused took the minor child

from the lawful custody of her guardians, thereby the

essential ingredients of the offence of kidnapping as defined

under Section 361, IPC were established. The Trial Court,

thereafter, proceeded to refer to Section 29 of the POCSO Act

and with such reference in the background, proceeded to

consider and appreciate the evidence concerning the

commission of offence under the POCSO Act. It appeared on

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an attentive reading of the reasoning supplied by the Trial

Court that it discussed and analysed the evidence under the

shadow of Section 29 of the POCSO Act. Section 29 creates

a statutory presumption, to ultimately conclude that the

accused was guilty of the offence under the POCSO Act,

liable to be sentenced for such offence.

7.1 Section 29 of the POCSO Act raises a presumption

as to certain offences against a person who is prosecuted for

committing or abetting etc. the offences. It reads thus,

“29. Presumption as to certain offences.—Where

a person is prosecuted for committing or abetting

or attempting to commit any offence under Sections

3, 5, 7 and Section 9 of this Act, the Special Court

shall presume, that such person has committed or

abetted or attempted to commit the offence, as the

case may be unless the contrary is proved.”

7.1.1 In the same way, Section 30 of the POCSO Act raises

presumption of culpable mental state on the part of the

accused, which is reproduced herein,

“30. Presumption of culpable mental state .—(1)

In any prosecution for any offence under this Act

which requires a culpable mental state on the part

of the accused, the Special Court shall presume the

existence of such mental state but it shall be a

defence for the accused to prove the fact that he

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had no such mental state with respect to the act

charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to

be proved only when the Special Court believes it to

exist beyond reasonable doubt and not merely

when its existence is established by a

preponderance of probability.

Explanation.—In this section, “culpable mental

state” includes intention, motive, knowledge of a

fact and the belief in, or reason to believe, a fact.”

7.1.2 Section 29 operates to provide that where a person

is prosecuted for committing any offence under Sections 3,

5, 7 and 9 of the Act and where the victim child is below the

age of 16 years, the court shall presume that such person

has committed the offence, unless the contrary is proved.

Section 30 pre-supposes a culpable mental state mens rea

on the part of the accused. At the same time, it provides that

a defence is possible to be raised by the accused to prove the

fact that he had no such mental state with respect to the act

charged as an offence against him. The factum of culpable

mental state can be said to be proved, as sub-section (2)

mentions, only when the court believes it to accept beyond

reasonable doubt and not on the preponderance of

probability.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 25 of 42

7.1.3 The presumptive provisions of Sections 29 and 30

of the POCSO Act are a departure from the cardinal rule in

criminal jurisprudence that the accused is presumed to be

innocent till proved guilty. While a presumption of innocence

of an accused runs through the jurisprudence of

administration of justice in criminal cases, the legislature in

the modern times has enacted in certain statutes, the

provision which presumes, on part of the accused, about

commission of offence. These presumptive provisions pre-

suppose by creating a statutory presumption, the

commission of act of offence and the existence of culpable

mental state on part of the person accused of the offence

under the statute concerned, until otherwise proved.

7.1.4 The presumption that the accused is guilty until

contrary is proved is described as rule of reverse burden,

which at the threshold discards the theorem of presumption

of innocence. The provisions regarding presumption of guilt

are enacted having regard to the gravity of the offence

provided under different statutes and because of its serious

and adverse consequence on the society. The POCSO Act is

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one such statute which is enacted with the object that it is

a law enacted to protect children from offences of sexual

assault, sexual harassment and pornography conduct by

the committers of such heinous crime.

7.2 Similar provisions like Section 29 and Section 30 in

the POCSO Act raising presumption of guilt and providing

for rule of reverse burden are found in other statutes also.

They are Sections 35 and 54 in the Narcotic Drugs and

Psychotropic Substances Act, 1985

11, Section 20 in the

Prevention of Corruption Act, 1988, Section 57 in the Wild

Life (Protection) Act, 1972, Section 10C in the Essential

Commodities Act, 1955, Section 10(7-B) in the Prevention of

Food Adulteration Act, 1954, Sections 123, 138A and 139 in

the Customs Act, 1962 and Section 39 in the Foreign

Exchange Management Act, 1999. Sections 138 and 139 of

the Negotiable Instruments Act, 1881 also create

presumption about existence of certain facts relating to

negotiable instruments and their negotiability.

11

Hereinafter, “NDPS Act”

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 27 of 42

7.3 It has to be stated that presumptions of such kind

as provided in Sections 29 and 30 of the POCSO Act are not

absolute presumptions. The Bombay High Court in Navin

Dhaniram Baraiye vs. State of Maharashtra, through

P.S.O., P.S. Ajni, District Nagpur

12

pertinently observed

about the nature and operational ambit of Section 29 of the

POCSO Act,

“A perusal of the above quoted provision does show

that it is for the accused to prove the contrary and

in case he fails to do so, the presumption would

operate against him leading to his conviction under

the provisions of the POCSO Act. It cannot be

disputed that no presumption is absolute and every

presumption is rebuttable. It cannot be

countenanced that the presumption under

Section 29 of the POCSO Act is absolute. It would

come into operation only when the prosecution is

first able to establish facts that would form the

foundation for the presumption under Section 29 of

the POCSO Act to operate.”

(Para 18)

7.3.1 In the same paragraph, the High Court proceeded

to state,

“Otherwise, all that the prosecution would be

required to do is to file a charge sheet against the

accused under the provisions of the said Act and

then claim that the evidence of the prosecution

witnesses would have to be accepted as gospel truth

and further that the entire burden would be on the

12

2018 SCC OnLine Bom 1281

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 28 of 42

accused to prove to the contrary. Such a position of

law or interpretation of the presumption under

Section 29 of the POCSO Act cannot be accepted as

it would clearly violate the constitutional mandate

that no person shall be deprived of liberty except in

accordance with procedure established by law.”

(Para 18)

7.4 The statutory presumptions cannot be read to mean

that the prosecution version is liable to be treated as gospel

truth in every case. It has to be additionally observed by this

Court the presumptive provisions notwithstanding, the

courts are not absolved from discharging their essential

duty to analyse the evidence on record in light of the features

emerging in a particular case. The court should not

mechanically accept the ipse dixit of the prosecution riding

on the provisions regarding presumption of guilt to give a

stamp of approval to every prosecution even if they are

absurd or improbable in its story. At the end of the trial, the

accused should not stand at a discount or at disadvantage

only for the reason that the particular statute under which

he is tried for the offence contains presumptive provisions

about the guilt of the accused.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 29 of 42

7.5 The reverse burden contemplated in presumptive

provisions could be said to be an additional weapon in the

armoury of prosecution. However, this arm could be

thwarted by the accused by leading evidence to the contrary.

Differently stated, the presumption of commission of offence

or the presumption of culpability mental state are rebuttable

presumptions. The truthfulness of the factum raised by way

of statutory presumptions can be countered by the accused

by leading evidence. Although the prosecution may have

established the primary facts relating to commission of

offence, once the accused discharges his burden of shifting

onus to be able to show that the state of things are otherwise

or that the accused raises a valid defence, the presumption

of guilt and culpability would start disappearing.

7.5.1 The rebuttal of presumption by the accused could

be in several ways as may be permissible in law. The

accused may demolish the prosecution version by

discrediting the prosecution witnesses or falsify them in the

cross-examination. The presumption could be kept at bay

by showing inherent inconsistencies and contradictions in

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 30 of 42

the evidence of the prosecution. The rebuttal may be

achieved by pointing out the absurdities and the gaps in the

prosecution story and by bringing out the loopholes therein.

The absence of proof of relevant facts, mismatch of ocular

and medical evidence and non-corroboration of the evidence

in different walks may also be good tools for rebuttal. The

accused may also raise available statutory defence or factual

defence to counter the allegations of the prosecution. He

may by his version in defence show the improbability of the

prosecution case.

7.5.2 The presumption of commission of offence and that

of guilty mental state which has been applied at the

beginning of the trial in view of the presumptive provisions

in that regard, may at the stage of the conclusion of

evidence, vanish if the reverse burden is successfully

discharged by the accused to rebut the prosecution case. In

ultimate analysis, it will be the total canvass of evidence

which would play a decisive role. The presumptive

provisions do not operate to oust the evidence standing in

favour of the accused.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 31 of 42

7.5.3 The provision like Section 29 and Section 30 of the

POCSO Act is only a rule shifting the evidential burden.

Such presumption of guilt or mens rea has a role to play in

the initial stages of the trial. Normally, the prosecution

would fail even if the accused does not adduce any evidence

or in the event where the evidence adduced by the

prosecution does not prove the guilt of the accused beyond

reasonable doubt. However, when the presumption of the

nature such as Section 29 of the POCSO Act operates, once

the prosecution adduces the basic and foundational facts

constituting the offence. It would be presumed that the

accused has committed or abetted or attempted to commit

the offence alleged against him, unless contrary is proved by

him. In other words, once the prosecution discharges the

initial burden of showing the existence of essential facts

constituting the offence, the ball would lie with the accused

who has to discharge thereupon the onus to disprove the

fact regarding commission of offence. The burden shifts on

the accused to prove his innocence.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 32 of 42

7.6 Again, the provision raising presumption of guilt

against the accused cannot operate in any way to discount

the norms of fair trial and the principles governing the fair

trial realm. This Court in Naresh Kumar alias Nitu vs.

State of Himachal Pradesh

13

, while speaking with reference

to the similar provision under the NDPS Act inter alia

observed that in the stringent nature of the provisions of the

NDPS Act, the concept of reverse burden of proof, the

presumption of culpability under Section 35 and the

presumption against the accused under Section 54, any

reliance on Section 114 of the Evidence Act could be applied,

in any case, only at the risk of a fair trial to the accused,

suggesting thereby that the operation of provisions of such

nature cannot be permitted to discount the fundamental

norms of the fair trial, which is the right of the accused

under Article 21 of the Constitution.

7.7 The provision regarding presumption of guilt or that

the rule of reverse burden requiring the accused to prove his

innocence does not change the rule of standard of proof as

13

(2017) 15 SCC 684

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 33 of 42

normally applied in the criminal cases. The principle is to be

highlighted that even where there exists a presumptive

provision with reverse burden of proof, the prosecution is

obliged in law to prove the guilt against the accused beyond

reasonable doubt. While the prosecution will have to

establish the culpability ad guilt of the accused beyond

reasonable doubt and that the accused cannot be held guilty

on the preponderance of probability, when it comes to

proving the innocence by the accused, the standard of proof

would be the preponderance of probability. In other words,

the accused would be able to counter the prosecution case

by raising a defence and thereby to show himself innocent

on preponderance of probability.

7.8 This Court in Noor Aga v. State of Punjab and

Another

14

observed in the context of the similar provision

under the NDPS Act emphasising that the presumption of

culpability against the accused would not in any manner

whittle down the rights of the accused which are available

as part of the fair trial and to prove his innocence,

14

(2008) 16 SCC 417

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 34 of 42

“An initial burden exists upon the prosecution and

only when it stands satisfied, would the legal

burden shift. Even then, the standard of proof

required for the accused to prove his innocence is

not as high as that of the prosecution. Whereas the

standard of proof required to prove the guilt of the

accused on the prosecution is “beyond all

reasonable doubt” but it is “preponderance of

probability” on the accused. If the prosecution fails

to prove the foundational facts so as to attract the

rigours of Section 35 of the Act, the actus reus

which is possession of contraband by the accused

cannot be said to have been established.”

(Para 58)

7.8.1 The Court further stated,

“With a view to bring within its purview the

requirements of Section 54 of the Act, element of

possession of the contraband was essential so as to

shift the burden on the accused. The provisions

being exceptions to the general rule, the generality

thereof would continue to be operative, namely, the

element of possession will have to be proved beyond

reasonable doubt.”

(Para 59)

7.8.2 In Naresh Kumar (supra) also, this Court

underlined that the presumption against the accused about

culpability does not dispense with the obligation on part of

the prosecution to prove charge beyond all reasonable

doubt. It was stated that the presumptive provision could

not justify the conviction on the basis of preponderance of

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 35 of 42

probability. This Court held that the reversal of acquittal of

the appellant by the High Court was speculative by

misapplying the presumptive provision about culpability.

7.8.3 The principle was reiterated in Gangadhar alias

Gangaram vs. State of Madhya Pradesh

15

. This Court

stated that the gravity of sentence and stringency of the

provisions of the NDPS Act which contain the provisions

regarding presumption of guilt of the accused, may in a way

call for heightened scrutiny of evidence for the establishment

of foundational facts by the prosecution, however, the guilt

of the accused has to be invariably established beyond

reasonable doubt.

7.8.4 The accused facing trial under the POCSO Act on

the presumptive provision of guilt operating against him may

rebut the prosecution case by offering an explanation which

might reasonably be true and which is consistent with his

defence of innocence. It is not that the accused is not

required to establish his plea of defence by leading proper

evidence, but the degree and character of proof which the

15

(2020) 9 SCC 202

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 36 of 42

accused is expected to provide in substantiation of his plea,

cannot be equated with the degree and extent of proof

expected from the prosecution which will have to invariably

prove its case against the accused beyond reasonable doubt.

7.9 This Court in V.D. Jhingan vs. State of Uttar

Pradesh

16

dealt with Section 4(1) of the Prevention of

Corruption Act, 1947 interpreting the expression “unless the

contrary is proved”, to observe thus,

“It is well-established that where the burden of an

issue lies upon the accused, he is not required to

discharge that burden by leading evidence to prove

his case beyond a reasonable doubt. That is, of

course, the test prescribed in deciding whether the

prosecution has discharged its onus to prove the

guilt of the accused; but the same test cannot be

applied to an accused person who seeks to

discharge the burden placed upon him under

Section 4(1) of the Prevention of Corruption Act. It

is sufficient if the accused person succeeds in

proving a preponderance of probability in favour of

his case; it is not necessary for the accused person

to prove his case beyond a reasonable doubt or in

default to incur a verdict of guilty. The onus of proof

lying upon the accused person is to prove his case

by a preponderance of probability. As soon as he

succeeds in doing so, the burden is shifted to the

prosecution which still has to discharge its original

onus that never shifts i.e. that of establishing on

the whole case the guilt of the accused beyond a

reasonable doubt.”

(Para 2)

16

AIR 1966 SC 1762

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 37 of 42

7.9.1 This Court in Trilok Chand Jain vs. State of

Delhi

17

observed,

“If the story set up by the prosecution inherently

militates against or is inconsistent with the fact

presumed, the presumption will be rendered sterile

from its very inception, if out of judicial courtesy it

cannot be rejected out of hand as stillborn.”

(Para 11)

8. The operation of the statutory presumptions would

also not permit the departure from the well -recognized

principle, which is the golden thread running through the

web of criminal justice administration that if two views are

possible on the evidence adduced in the case, one pointing

towards guilt of the accused and the other towards

innocence, the view which is favouring the accused should

be adopted. This again reiteration in different way of the

dictum that the guilt of the accused has to be proved beyond

reasonable doubt and not on the basis of preponderance of

probability.

8.1 In Kali Ram vs. State of Himachal Pradesh

18

, this

Court observed that unless the evidence adduced in the case

17

(1975) 4 SCC 761

18

(1973) 2 SCC 808

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 38 of 42

is consistent only with the hypothesis of the guilt of the

accused and is inconsistent with that of his innocence, the

court should refrain from recording a finding of guilt of the

accused, observed in paragraph 25.

8.1.1 Kali Ram (supra) also answered the aspect as to

whether the above proposition should be applied and would

hold truth for trying an accused person for the offences

under the statute which raise presumption of guilt and

culpability against the accused. It was observed,

“There are certain cases in which statutory

presumptions arise regarding the guilt of the

accused, but the burden even in those cases is

upon the prosecution to prove the existence of facts

which have to be present before the presumption

can be drawn. Once those facts are shown by the

prosecution to exist, the Court can raise the

statutory presumption and it would, in such an

event, be for the accused to rebut the presumption.

The onus even in such cases upon the accused is

not as heavy as is normally upon the prosecution

to prove the guilt of the accused. If some material

is brought on the record consistent with the

innocence of the accused which may reasonably be

true, even though it is not positively proved to be

true, the accused would be entitled to acquittal.”

(Para 23)

8.1.2 In Kali Ram (supra), following was further stated,

“It needs all the same to be re-emphasised that if a

reasonable doubt arises regarding the guilt of the

accused, the benefit of that cannot be withheld

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 39 of 42

from the accused. The Courts would not be justified

in withholding that benefit because the acquittal

might have an impact upon the law and order

situation or create adverse reaction in society or

amongst those members of the society who believe

the accused to be guilty. The guilt of the accused

has to be adjudged not by the fact that a vast

number of people believe him to be guilty but

whether his guilt has been established by the

evidence brought on record……”

(Para 26)

8.1.3 It was further observed that if an innocent accused

is not acquitted, it would against not only the interest of the

accused but also against public interest,

“….Reference is sometimes made to the clash of

public interest and that of the individual accused.

The conflict in this respect, in our opinion, is more

apparent than real. As observed on p. 3 of the book

entitled The Accused by JA Coutts 1966 Edition,

“When once it is realised, however, that the public

interest is limited to the conviction, not of the

guilty, but of those proved guilty, so that the

function of the prosecutor is limited to securing the

conviction only of those who can legitimately be

proved guilty, the clash of interest is seen to operate

only within a very narrow limit, namely, where the

evidence is such that the guilt of the accused

should be established. In the case of an accused

who is innocent, or whose guilt cannot be proved,

the public interest and the interest of the accused

alike require an acquittal.”

(Para 26)

9. In the case of conviction or acquittal of the accused

facing trial for any criminal offence, what is necessarily

involved is the issue of his personal liberty. When an issue

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 40 of 42

concerning the liberty of an individual is involved to be dealt

with in law, the court has to be extra careful and cautious.

The court should always undertake objective assessment

and appreciation of evidence. Therefore, in addressing the

entitlement of the accused to the acquittal, the court should

not overweigh itself with the provisions like that of Section

29 or Section 30 of the POCSO Act.

9.1 Even as the statute concerned may be containing

such presumptive presumption, the appreciation of evidence

should be guided by all normal standards and yardsticks to

be applied in law. The court is not expected to influence itself

by the existence of presumptive provision so as to lean

towards the prosecution while analysing and interpreting

the evidence. The presumptive provision may have its play

at the primary stage to have the effect of shifting the onus

on the accused, however once the evidential emptiness is

found in the prosecution case and the prosecution version

lacks credibility or borders perversity, the presumption of

guilt would no longer remain effective.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 41 of 42

9.2 The court should not therefore be overshadowed or

inhibited by the provision of presumption of guilt and

commission of offence by the accused and would weigh the

evidence with usual principles. The accused should be given

full room to prove to the contrary to displace the

presumption and demolish the case of the prosecution.

10. In the present case, the appellant-accused has been

successful in rebutting the prosecution story. Even if

initially the provisions of Section 29 and Section 30 of the

POCSO Act operated to raise presumption against the

accused, the evidence of the prosecution manifested

inconsistencies, improbabilities and material

contradictions. The medical evidence was non-corroborative

in all respects, suggesting the non-commission of offence on

part of the appellant. The defence story put forth by the

appellant was cogent and its evidentiary value had the effect

of crumbling the prosecution story. In the total perspective

of evidence on record, it could hardly be said that the

prosecution was able to prove the guilt of the appellant,

much less beyond reasonable doubt.

Criminal Appeals @ SLP (Crl.) Nos. 21271-72 of 2025 Page 42 of 42

10.1 For all the foregoing discussion and reasons, the

impugned judgment and order dated 03.07.2025 passed by

the High Court of Delhi confirming the trial court judgment

to uphold the conviction and sentence of the appellant

under Section 363, IPC and under Section 6 of the POCSO

Act is liable to set aside. The same is hereby set aside. The

appellant is held not guilty and stands acquitted of the

aforesaid offences.

10.2 He shall be forthwith released if behind the bars,

unless his custody is required for any other offence.

11. The appeals stand allowed.

..……....…………………………..,J.

[PRASHANT KUMAR MISHRA]

…………………………………..,J.

[N.V. ANJARIA]

NEW DELHI;

SEPTEMBER 17 , 2026.