Patna High Court
Md. Khurshid @ Md. Khurshid RayeenversusThe State Of Bihar
- Decided
- Disposal
- DISPOSED
Holding
The High Court set aside the convictions under IPC 376(i) and POCSO Sections 4 and 12, but affirmed the conviction under POCSO Section 8.
Summary
The appellant, Md. Khurshid, was convicted by a Special POCSO Court for raping an eight‑year‑old girl, being sentenced to life imprisonment under IPC 376(i) and to rigorous imprisonment for offences under POCSO Sections 4, 8 and 12. On appeal, the High Court examined the evidence – the victim’s testimony, the absence of any injury or spermatozoa in the medical examination, and the presence of semen on the victim’s pant – and held that these did not prove penetrative sexual assault or sexual harassment. Consequently, the Court set aside the convictions under IPC 376(i) and POCSO Sections 4 and 12, but upheld the conviction under Section 8 (sexual assault) of the POCSO Act. The appeal was allowed in part and the appellant was ordered to be released after serving over seven years in custody.
Issues considered
- Whether the evidence establishes the offence of penetrative sexual assault under POCSO Section 4
- Whether the conviction for sexual harassment under POCSO Section 12 is sustainable
- Whether the conviction for rape under IPC Section 376(i) is justified
- Whether the conviction for sexual assault under POCSO Section 8 is supported by the evidence
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 376
- Protection of Children from Sexual Offences Act, 2012 — s. 11, 12, 29, 3, 4, 7, 8
Subjects
- rape
- POCSO Act
- sexual assault
- penetrative sexual assault
- child protection
- appeal
- medical evidence
- conviction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1100 of 2018
Arising Out of PS. Case No.-8 Year-2018 Thana- MAHILA P.S. District- Munger
======================================================
Md. Khurshid @ Md. Khurshid Rayeen Son of Md. Amanat, Resident of
Mohalla- Murgiya Chak, P.S. Kotwali, District- Munger.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Praveen Kumar Agrawal, Adv
: Mr. Santosh Kumar Singh, Adv
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 24-04-2026
Heard learned counsel appearing on behalf of
petitioner and learned A.P.P. for the State.
2. The present appeal has been preferred by aforesaid
appellant-convict under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the Code’)
challenging the impugned judgment of conviction dated
02.08.2018 and order of sentence dated 03.08.2018 respectively
passed by learned A.D.J. 1 cum Special Judge (POCSO),
Munger in Mahila P.S. Case No. 08 of 2018/POCSO 24 of 2018,
whereby and where under the learned Trial Court has convicted
the appellant for the offences punishable under Section 376 (i)
of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’) and
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
2/24
Sections 4, 8 and 12 of the POCSO Act. Appellant has been
sentenced to undergo rigorous imprisonment for life alongwith
fine of Rs. 25,000/- under Section 376 (i) of the I.P.C.,
sentenced to undergo rigorous imprisonment for ten years
alongwith fine of Rs. 10,000/- under Section 4 of the POCSO
Act, sentenced to undergo rigorous imprisonment for five years
alongwith fine of Rs. 5,000/- under Section 8 of the POCSO Act
and further sentenced to undergo rigorous imprisonment for
three years alongwith fine of Rs. 5,000/- under Section 12 of the
POCSO Act. In default of payment of fine, convict shall
undergo simple imprisonment for six months. All the aforesaid
sentences have been ordered to run concurrently.
Case of prosecution
3. The brief case of prosecution as it appears from the
written report of the Shahjahan Khatoon (P.W. 3) to the SHO
Mahila Police Station that on 17.06.2018 she had gone to
Saharsa to see her sick sister and came at home on 19.06.2018
upon which her daughter Tasarun Najrin aged about 8 years told
her that on 18.06.2018 at about 4:00 PM, when she was alone at
her home appellant-accused Md. Khurshid came to her house.
He laid her down on surface and opened her pants and rubbed
his penis and fled away. He also threatened to not tell anyone
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
3/24
about this occurrence.
4. On the basis of aforesaid written report, Mahila P.S.
Case No. 08 of 2018 was lodged for the offences punishable
under Section 376(i) of the I.P.C. and Sections 4, 8 and 12 of the
POCSO Act.
5. After completion of investigation, the police
submitted charge sheet against the sole appellant-accused Md.
Khurshid for the offences punishable under Section 376(i) of the
I.P.C. and Sections 4, 8 and 12 of the POCSO Act. Considering
materials available on record cognizance of the offence was
taken against the sole accused-appellant before the learned
Special Judge (POCSO), on 25.06.2018.
6. To substantiate its case before learned trial court
(Special Court), the prosecution has, in total, examined eight
witnesses, which are:-
Sr. No(s). Prosecution Witnesses
P.W. 1 Tasarrun Nazrin (victim)
P.W. 2 Rozida Khatoon (neighbor)
P.W. 3 Shahjahan Khatoon (mother of the
victim)
P.W. 4 Dr. Niranjan Kumar
P.W. 5 Md. Zulfikar (father of the victim)
P.W. 6 Shahnaj Begum (sister of informant)
P.W. 7 Dr. Manjula Rani Mandal
P.W. 8 Punam Sinha (Investigating Officer)
7. The prosecution has also relied upon the following
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
4/24
documents as to substantiate its case, which are as under:-
Sr. No. Exhibit No(s). List of documents.
1. Exhibit -1 Signature on seizure list.
2. Exhibit-2 Signature on seizure U/s
164 of the Cr.P.C.
3. Exhibit-3 Signature on written
report.
4. Exhibit-4 Signature on seizure list.
5. Exhibit-5 & 6 Medical report.
6. Exhibit-7 Endorsement.
7. Exhibit-8 Formal FIR.
8. Exhibit-9 Seizure List.
9. Exhibit-10 Petition for examination.
10. Exhibit-11 Petition for statement U/s
164 of the Cr.P.C.
11. Exhibit-12 Petition for sending FSL.
12. Exhibit-13 Statement U/s 164 of the
Cr.P.C.
13. Exhibit-14 FSL Report.
8. The statement of the appellant-accused was
recorded under Section 313 of the Code after stating to him
incriminating evidence/circumstances as surfaced during the
trial, which he denied and showed his complete innocence.
9. On the basis of evidences as surfaced during the
trial, the learned trial court convicted and sentenced the
appellant/convict, in aforesaid terms. Being aggrieved of which
present appeal was preferred.
10. Hence, the present appeal.
Argument on behalf of appellant
11. Learned counsel appearing for appellant
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
5/24
submitted that appellant-accused is a next door neighbor of the
victim and out of neighborhood disputes and differences he was
implicated falsely with this case. It is submitted that ocular
evidence is not corroborating with the medical evidence and
merely on the basis of presumption and assumption taking
meaning of “bad work” impliedly “insertion of penis into
vagina to some extent”, the conviction of the appellant was
recorded under Section 4 of the POCSO Act. It is also submitted
that semen was detected on the pant of the victim as per FSL
report without having any blood and, therefore, it was presumed
by the learned Trial Court that the appellant tried to insert his
penis into the vagina. In support of his submissions learned
counsel relied upon the legal reports of Hon’ble Supreme Court
as held in the matters of Sadashiv Ramrao Hadbe Vs. State of
Maharashtra and Another, [(2006) 10 SCC 92] & Wahid
Khan Vs. State of Madhya Pradesh, [(2010) 2 SCC 9].
12. In view of aforesaid, it is submitted that finding of
the learned Trial Court as per victim to the appellant under
Section 4 of the POCSO Act is completely perverse. It is
submitted that to convict the appellant for sexual assault and
sexual harassment within the meaning of Sections 7 and 11 of
the POCSO Act, “sexual intent” is the essential criteria, and
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
6/24
thus prosecution failed to establish foundational aspects during
the trial as to import presumption within the meaning of Section
29 of the POCSO Act, therefore, on this score alone the
conviction as recorded by learned Trial Court is appearing bad
in the eyes of law and deserves to be set aside.
Argument on behalf of State
13. Learned A.P.P. appearing on behalf of State, while
opposing the appeal submitted that statement of victim is
consistent qua occurrence, where she categorically stated that
appellant committed wrong work upon her after removing her
pant, while she was alone at her house. It is submitted that upon
forensic examination, semen was detected on the pant of the
victim. It is also submitted that the victim also testified the
occurrence qua wrong work and also touching her private part
by the appellant-accused during the occurrence and, therefore,
her testimony is consistent on this aspect. It is further submitted
that learned Trial Court rightly held that after touching the
private part “bad work” was committed upon her, meaning
thereby the penetration was up to some extent and, therefore, the
conviction of appellant as recorded under Section 4 of the
POCSO Act cannot be viewed with doubt. It is submitted that in
actual this is a case of “aggravated penetrative sexual assault”,
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
7/24
as victim was below 12 years, within the meaning of Section of
5(m) of the POCSO Act. In support of his submissions learned
APP relied upon the legal report of Hon’ble Supreme Court as
held in the matter of Attorney General for India Vs. Satish
and Another, [(2022) 5 SCC 545].
Deposition of witnesses
14. PW-1 (victim), herself deposed during the trial
through her examination-in-chief that occurrence took place at
about 4:00 PM on 18.06.2018, when she was alone in her house.
Appellant came suddenly to her house and pulled her red pant
up to her knee and touched her genital and private part,
thereafter committed bad work with her. It is deposed that at the
time of occurrence her mother was not in the house and when
she returned back on the next day she narrated occurrence to
her. She went to Mahila Police Station with her mother/P.W. 3,
where after the present case was lodged. It was also deposed
that the police seized her red pant and made its seizure, upon
which she put her signature, which upon her identification
before Court, was exhibited as Exhibit-1. She further identified
her signature on her statement recorded under Section 164 of the
Cr.P.C., which upon her identification during trial exhibited as
Exhibit-2. She has also stated that her medical test was done in
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
8/24
hospital. It was deposed by her during cross-examination that
she has no relation with accused-appellant, though she failed to
say about the month and year of the occurrence, but she
categorically deposed that it took place on the 18th. It was stated
that she narrated the occurrence only to her mother and denied
false implication of the accused-appellant.
15. P.W. 2 is Rozida Khatoon, who stated in her
chief that she is the neighbour of the informant/P.W.3 and on
18.06.2018 at about 4:00 PM, while she was on roof of her
house, she saw appellant coming out from the house of the
informant, noticing the same she asked him that what he was
doing there ?, but instead of replying he fled away.
Subsequently she went to the house of informant and found the
victim in fearful condition whereafter she asked her about, but
she told nothing. It is further deposed by her that on the very
next day mother of the victim came back and victim told her
about the occurrence, thereafter mother/P.W. 3 narrated the
occurrence to her. She also said that appellant had done such
shameful act to others of the locality, but none lodged case due
to fear. In her cross-examination she stated that she gave her
statement to police after two days of the occurrence. She has no
dispute with the accused.
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
9/24
16. P.W. 3 is Shahjahan Khatoon, who is mother of
the victim and informant of this case. She supported date and
time of the occurrence. She was told about the occurrence on
19.06.2018 by her daughter/victim when she came back from
Saharsa. She also informed about that appellant rubbed his
penis on her vagina and did bad work. He also threatened victim
as not to disclose the occurrence to anyone. It was deposed that
she went to police station along with her victim daughter and
sister. Application was written by Md. Shahjad as per her
instruction, which upon her identification was exhibited as
Exhibit-3/1. She identified her signature over there, which has
been exhibited as Exhibit-3. She also identified her signature on
seizure list, which upon her identification was exhibited as
Exhibit-4. In her cross-examination she stated that accused is
her neighbor and red pant which was worn by her daughter was
handed over to the police.
17. P.W. 4 is Dr. Niranjan Kumar & P.W. 7 is Dr.
Manjula Rani Mandal. P.W. 4 Dr. Niranjan Kumar stated in
his chief that victim was brought before the medical board in
which he was one of the member and determined her age
between 9-10 years. He identified the writing and signature on
medical report which was exhibited as Exhibit-5. He denied
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
10/24
suggestion qua wrong preparation of medical report. P.W. 7 is
Dr. Manjula Rani Mandal who examined victim on 20.06.2018
and upon medical examination she found no mark of injury
either in external or private part of the body, no vaginal
laceration, no perineal tear, secondary sex characters not
developed and upon histopathological examination of vaginal
swab- neither motile or non-motile spermatozoa was found,
epithilial cells- 1-2/hpf, RBC-nil, WBC-0-1hpf. Upon cross-
examination it was stated that cloth of victim was seized by IO.
She identified the medical report prepared by her, which upon
her identification was exhibited as Exhibit-6.
18. P.W. 5 is Md. Zulfikar, who is father of the
victim. He supported the date and time of the occurrence and
after knowing the occurrence he went to police station along
with his wife/P.W. 3, victim daughter/P.W. 1 and relatives.
19. P.W. 6 is Shahnaj Begum, who is the sister of
informant. She also testified that she came to her sister’s house
in Munger on 19.06.2018. She came to know about the
occurrence and also went to police station along with victim.
She also put her signature on seizure list of red pant, which she
identified during trial.
20. P.W. 8 is Punam Sinha, who is an Investigating
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
11/24
Officer of this case and deposed that on 19.06.2018 the
informant and her victim daughter came to police station and on
the basis of the written application she lodged an FIR against
the accused and started investigation. Upon her identification of
endorsement, FIR signature on it same were exhibited as
Exhibit-7, 8 & 8/1, respectively. She also identified the seizure
list, which has been exhibited as Exhibit-9. She has further
stated that she took statement of victim, P.W. 3/informant and
P.W. 6. She has sent the victim for medical examination and
visited the place of occurrence. She also identified the petition
dated 20.06.2018 in which victim was sent for medical
examination which has been exhibited as Exhibit-10. Petition
for recording statement of victim under Section 164 of Cr.P.C.
was exhibited as Exhibit-11. She has stated that on 22.06.2018
she has obtained order from the court for sending seized cloth to
FSL, she identified the said petition, which upon her
identification exhibited as Exhibit-12. It was deposed further
that after completion of investigation, charge-sheet was
submitted. Upon cross-examination it was stated by her that
victim came to police station wearing seized pant. She also
stated that upon medical examination of the victim, rape was not
confirmed by the doctors.
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
12/24
21. In view of aforesaid discussed evidence the first
and foremost important question which appears to us as to
whether the available evidence justified the conviction of
appellant for the offence punishable under Section 4 of the
POCSO Act. To examine the aforesaid issue it would be
apposite to reproduce Section 3 of the POCSO Act, which is as
under :-
3. Penetrative sexual assault.—A person is said to
commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do
so with him or any other person; or
(c) he manipulates any part of the body of the child
so as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes the
child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person.
22. It would also be apposite to reproduce Section 7
of the POCSO Act, which defines sexual assault & also Section
11 of the POCSO Act, which defines sexual harassment, under
conviction of appellant was recorded by learned Trial Court
which are as under :-
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
13/24
7. Sexual assault.—Whoever, with sexual intent
touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis,
anus or breast of such person or any other person,
or does any other act with sexual intent which
involves physical contact without penetration is
said to commit sexual assault.
11. Sexual harassment.—A person is said to
commit sexual harassment upon a child when such
person with sexual intent,—
(i) utters any word or makes any sound, or makes
any gesture or exhibits any object or part of body
with the intention that such word or sound shall be
heard, or such gesture or object or part of body
shall be seen by the child; or
(ii) makes a child exhibit his body or any part of
his body so as it is seen by such person or any
other person; or
(iii) shows any object to a child in any form or
media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through
electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real
or fabricated depiction through electronic, film or
digital or any other mode, of any part of the body
of the child or the involvement of the child in a
sexual act; or
(vi) entices a child for pornographic purposes or
gives gratification therefore.
23. It would be apposite to reproduce paragraph no(s).
7 to 14 of the Sadashiv Ramrao Hadbe Case (supra), which
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
14/24
are as under:-
7. The doctor, who examined the prosecutrix at
about 3 p.m., did not find any injury on her body.
There was only swelling on the upper lip but the
prosecutrix had no case that this swelling on the
upper lip was caused during the course of the
incident. There were no injuries on her private
parts and the doctor who had examined her was
unable to give any opinion about the sexual
intercourse allegedly taken place. It is important
to note that vaginal swab was collected by the
doctor and it was sent for chemical examination.
Exhibit 43 is the pathological report and it shows
that microscopic examination of the vaginal swab
showed desquamated cervical cells and few co-
oxalate crystals and fluid but no spermatozoa was
found. The swab of vagina was taken on the same
day and if any sexual intercourse had taken place
in all probabilities, the vaginal swab would have
contained some spermatozoa. The absence of
these sperm casts a serious doubt on the
prosecution version.
8. It may also be noticed that the appellant was
medically examined on the same day by PW 10.
In his evidence, he stated that smegma was
present around the corona glandis. He further
deposed that his examination negatived sexual
intercourse and for collection of smegma around
corona glandis a period of 24 hours is required.
This scientific evidence also did not support the
prosecution. Had there been a vigorous sexual act
as alleged by the prosecutrix there could not have
been the presence of smegma on his private part.
9. It is true that in a rape case the accused could be
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
15/24
convicted on the sole testimony of the prosecutrix,
if it is capable of inspiring confidence in the mind
of the court. If the version given by the
prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances
are highly improbable and belie the case set up by
the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.
10. In the present case there were so many persons
in the clinic and it is highly improbable that the
appellant would have made a sexual assault on the
patient who came for examination when large
number of persons were present in the near
vicinity. It is also highly improbable that the
prosecutrix could not make any noise or get out of
the room without being assaulted by the doctor as
she was an able-bodied person of 20 years of age
with ordinary physique. The absence of injuries
on the body improbabilise the prosecution
version.
11. The counsel who appeared for the State
submitted that the presence of semen stains on the
undergarments of the appellant and also semen
stains found on her petticoat and her sari would
probabilise the prosecution version that there
could have been a sexual intercourse with the
prosecutrix.
12. It is true that the petticoat and the underwear
allegedly worn by the a appellant had some semen
but that by itself is not sufficient to treat that the
appellant had sexual intercourse with the
prosecutrix. That would only cause some
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
16/24
suspicion on the conduct of the appellant but not
sufficient to prove the case, as alleged by the
prosecution.
13. The Sessions Court as well as the High Court
had not taken into consideration the absence of
spermatozoa in the vaginal swab of the
prosecutrix. It may also be noticed in the FI
statement. In this case the prosecutrix had not
given the full description of the incident allegedly
taken place but when she was examined in court
she had improved her version.
14. On a consideration of the entire evidence in
this case, we are of the view that there is a serious
doubt regarding the sexual intercourse allegedly
committed by the appellant on the prosecutrix.
The appellant is entitled to the benefit of those
doubts and we are of the view that the High Court
and the Sessions Court erred in finding the
appellant guilty. We set aside the conviction and
sentence of the appellant. The appellant, who is in
jail, is directed to be released forthwith, if not
required in any other case.
24. It would be apposite to reproduce paragraph no.
36 of the Attorney General of India Case (supra), which is as
under:-
36. There cannot be any disagreement with the
submission made by Mr. Luthra for the accused
that the expression “sexual intent” having not
been explained in Section 7, it cannot be confined
to any predetermined format or structure and that
it would be a question of fact, however, the
submission of Mr Luthra that the expression
“physical contact” used in Section 7 has to be
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
17/24
construed as “skin-to-skin” contact cannot be
accepted. As per the rule of construction contained
in the maxim “ut res magis valeat quam pereat”,
the construction of a rule should give effect to the
rule rather than destroying it. Any narrow and
pedantic interpretation of the provision which
would defeat the object of the provision, cannot be
accepted. It is also needless to say that where the
intention of the legislature cannot be given effect
to, the courts would accept the bolder construction
for the purpose of bringing about an effective
result. Restricting the interpretation of the words
“touch” or “physical contact” to “skin-to-skin
contact” would not only be a narrow and pedantic
interpretation of the provision contained in
Section 7 of the POCSO Act, but it would lead to
an absurd interpretation of the said provision.
“Skin to skin contact” for constituting an offence
of “sexual assault” could not have been intended
or contemplated by the legislature. The very
object of enacting the POCSO Act is to protect the
children from sexual abuse, and if such a narrow
interpretation is accepted, it would lead to a very
detrimental situation, frustrating the very object of
the Act, inasmuch as in that case touching the
sexual or non-sexual parts of the body of a child
with gloves, condoms, sheets or with cloth,
though done with sexual intent would not amount
to an offence of sexual assault under Section 7 of
the POCSO Act. The most important ingredient for
constituting the offence of sexual assault under
Section 7 of the Act is the “sexual intent” and not
the “skin-to-skin” contact with the child.
25. It would be apposite to reproduce paragraph no(s).
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
18/24
8 and 19 to 22 of the Wahid Khan Case (supra), which are as
under:-
8. The conviction of the appellant is founded on
the evidence of PW 1 prosecutrix as also the
evidence of PW 3, B.B. Subba Rao, Sub-Inspector
who had caught him red-handed while he was
committing rape. The medical report dated 15-10-
1988 of the prosecutrix is on record. It records that
her hymen was found to be intact whereas her
private part admitted only the tip of little finger
with difficulty. In the opinion of Dr. B. Biswas
who had examined her, no intercourse was done
with her. But, for determination of her age, she
was sent to the Forensic Department of Hamidia
Hospital. Dr. B. Biswas has not been examined by
the prosecution. At the time of medical
examination of the prosecutrix, her medical history
was recorded, marked at Ext. P-9 which
categorically records the manner in which the
appellant had committed rape on her.
19. It was also contended by learned counsel for
the appellant that since hymen of the prosecutrix
was found to be intact, therefore, it cannot be said
that an offence of rape was committed on her by
the appellant. This contention cannot be accepted
as the offence of rape has been defined in Section
375 IPC. Explanation to Section 375 reads thus:
“Explanation.—Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.”
It has been a consistent view of this Court that
even the slightest penetration is sufficient to make
out an offence of rape and depth of penetration is
immaterial.
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
19/24
20. It is appropriate in this context to reproduce the
opinion expressed by Modi in Medical
Jurisprudence and Toxicology (22nd Edn.) at p.
495 which reads thus:
“Thus, to constitute the offence of rape, it is not
necessary that there should be complete
penetration of penis with emission of semen and
rupture of hymen. Partial penetration of the penis
within the labia majora or the vulva or pudenda
with or without emission of semen or even an
attempt at penetration is quite sufficient for the
purpose of the law. It is therefore quite possible to
commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer
should mention the negative facts in his report, but
should not give his opinion that no rape had been
committed. Rape is a crime and not a medical
condition. Rape is a legal term and not a diagnosis
to be made by the medical officer treating the
victim. The only statement that can be made by the
medical officer is to the effect whether there is
evidence of recent sexual activity. Whether the
rape has occurred or not is a legal conclusion, not
a medical one.”
21. Similarly in Parikh's Textbook of Medical
Jurisprudence and Toxicology, “sexual
intercourse” has been defined as under:
“Sexual intercourse.—In law, this term is held to
mean the slightest degree of penetration of the
vulva by the penis with or without emission of
semen. It is therefore quite possible to commit
legally the offence of rape without producing any
injury to the genitals or leaving any seminal
stains.”
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
20/24
22. If the aforesaid facts are kept in mind, it cannot
be disputed that the act of the appellant would
certainly constitute an offence of rape and leaves
no amount of doubt in our mind.
Discussion & Conclusion
26. Now coming to the factual scenario of the present
case. It transpires to us that house of the victim/P.W. 1 was
visited by P.W. 2, immediately after the occurrence, but nothing
was stated to her, and she only observed victim fearful. She
came to know about the occurrence only on the next day of the
occurrence i.e., on 19.06.2018, when mother of the victim
returned to the home. As per testimony of P.W. 3 she was
informed by victim that appellant-accused pulled down her pant
upto knee and rubbed his penis on vagina and did “bad work”.
To examine this aspect it would be apposite to visit the
statement of victim as recorded under Section 164 of the Cr.P.C.
(Exhibit-13), which was recorded on 21.06.2018 on the third
day of the occurrence, where she stated that appellant after
entering into the house pulled her pant down and stroke and
caress her body part (without specifying private part) and
thereafter, committed wrong work with her. Further during the
trial while recording her testimony as P.W. 1 she deposed that
appellant after removing her red pant stroke and caress her
private part and committed wrong work with her.
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
21/24
27. In aforesaid context the testimony of P.W. 7 is also
important as she examined the victim from point of sexual
assault, she “did not find any injury either in external or in
private part of the body, no vaginal laceration, no perineal tear
was found. There was no spermatozoa, no RBC and WBC was
found”. As per P.W. 4, who is another doctor who has
ascertained the age of the victim categorically stated that age of
victim was determined between the age group of 9-10 years and
her secondary sexual characters were not even well developed
and, therefore, the ocular evidence is in corroboration with the
medical evidence, which negate any type of penetration and
merely as victim stated that “some wrong” work was done with
her does not implies that she was subjected to penetrative sexual
assault as held by learned Trial Court. The finding of the learned
trial court is also questionable on the point as “semen” was
found on the seized pant of the victim, therefore, appellant must
have attempted to penetrate. We find that for aforesaid findings
of the learned trial court is also 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. We are of the view that word
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
22/24
“bad work” is a genus to which “penetrative sexual assault”
is an species as to constitute the offence specifically within the
meaning of Section 3 of the POCSO Act, therefore, “bad work”
does not authorise the Court to presume “penetrative sexual
assault” within the meaning of Section 29 of the POCSO Act,
unless it is either corroborated with ocular or medical evidence.
28. Accordingly, the finding of learned Trial Court
qua conviction of appellant-accused under Section 4 of the
POCSO Act is bad in the eyes of law. No doubt the prosecution
witnesses consistently said that age of victim is 8 years during
the trial and victim also stated her age while recording her
statement as 8 years and even the medical board found victim
between the age group of 9-10 years. Age of victim was not
disputed during the trial, therefore, her age was certainly below
12 years at the time of occurrence.
29. Now, the second issue which requires to be
examined is regarding sustainability of conviction of appellant
under Section 8 of the POCSO Act. It appears from the
testimony of victim that after entering into the house, while she
was alone, appellant pulled down her pant and stroke and caress
her private part, thereafter, some bad work was committed upon
her. The semen was also found present on her pant, which was
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
23/24
seized by the police. It implies that the touch on the private part
was with sexual intent within the ambit of Section 7 of the
POCSO Act, as to constitute the offence of sexual assault
therefore, we have no reason to interfere with the conviction as
recorded under Section 8 of the POCSO Act by the learned Trial
Court.
30. Considering the nature of occurrence and
testimony of victim, we are convinced that it is a case of sexual
assault and not of sexual harassment, which is a distinct offence
under POCSO Act. Therefore, conviction as recorded under
Section 12 of the POCSO Act also not appears convincing.
31. In view of aforesaid, the conviction of appellant-
accused as recorded by learned Trial Court under Section 376 (i)
of the I.P.C. and Sections 4 and 12 of the POCSO Act appears
bad in the eyes of law and, therefore, we are convinced enough
to set aside conviction of appellant for aforementioned offences.
32. In view of aforesaid discussion, we uphold the
conviction of appellant under Section 8 of the POCSO Act for
which the maximum sentence is five years, even its aggravated
form it is seven years.
33. Record suggest that appellant remains in custody
since 26.06.2018 i.e., 7 years and 7 months.
Patna High Court CR. APP (DB) No.1100 of 2018 dt.24-04-2026
24/24
34. Accordingly, the impugned judgment of
conviction dated 02.08.2018 and order of sentence dated
03.08.2018 respectively qua offence under Section 376(i) of the
IPC and Section 4 and 12 of the POCSO Act, as passed by
learned A.D.J.-1, cum Special Judge (POCSO), Munger arising
out of Mahila P.S. Case No. 08 of 2018/POCSO Case No. 24 of
2018, is hereby set-aside.
35. Hence, Criminal Appeal (DB) No.1100 of 2018, as
preferred by appellant namely, Md. Khurshid @ Md. Khurshid
Rayeen stands allowed in part in aforesaid terms.
36. The appellant, namely, Md. Khurshid @ Md.
Khurshid Rayeen remains in custody for about 7 years and 7
months, he is directed to be released forthwith.
37. Let a copy of this judgment along with the Trial
Court Records be sent to the learned Trial Court forthwith.
(Chandra Shekhar Jha, J.)
S.Tripathi/- Bibek Chaudhuri, J:- I agree.
(Bibek Chaudhuri, J.)
AFR/NAFR NAFR
CAV DATE 17.04.2026
Uploading Date 24.04.2026
Transmission Date 24.04.2026
Checking your session…