Foundational Facts, Child Witness Competency and the Limits of Section 29 POCSO Presumption: Commentary on Jai Krishna Yadav v. State of Bihar

1. Introduction

The Division Bench of the Patna High Court in Jai Krishna Yadav v. State of Bihar, Criminal Appeal (DB) No. 205 of 2023, judgment dated 25 November 2025, set aside the conviction of the appellant under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”). The appeal arose out of a conviction by the Special POCSO Court, Patna, which had sentenced the appellant to 20 years’ simple imprisonment for aggravated penetrative sexual assault on a child of 5–6 years.

The decision is significant because it:

• Reinforces that Section 29 POCSO presumption of guilt operates only after the prosecution proves core “foundational facts” through cogent evidence.
• Clarifies that external rubbing without proof of penetration cannot be treated as “penetrative sexual assault” under Section 3 POCSO, especially when medical evidence rules out penetration.
• Emphatically reiterates the need to test the competency of a child witness before recording evidence and cautions against basing conviction on a tutored child’s testimony that lacks medical corroboration.
• Stresses investigative duties, including medical examination of the accused under Section 53A CrPC and proper examination of the place of occurrence and independent witnesses.

This commentary analyses the judgment’s factual background, the High Court’s reasoning, the precedents relied upon, and the likely impact on future POCSO prosecutions and trials involving child witnesses.

2. Factual and Procedural Background

2.1 Parties and Roles

Party	Role
Appellant – Jai Krishna Yadav	Home Guard posted at the official residence of former Chief Secretary Anjani Kumar Singh; resident of Madhepura; accused of sexually assaulting a minor girl.
Respondent No. 1 – State of Bihar	Prosecution through the Chief Secretary, Government of Bihar.
Respondent No. 2 – Mother of the victim	Informant; mother of the minor girl; resident in government quarters at Sachivalaya, Patna.

The victim’s father (P.W.1) was working for the officer in whose official residence the incident allegedly occurred. The appellant, as a Home Guard, was stationed there. According to the defence, there was prior friction between the appellant and the victim’s father relating to intoxication, theft of rice, and complaints made by the appellant to their superiors.

2.2 Allegations and FIR

The prosecution case originates from a written complaint dated 24.08.2020 made by the victim’s mother (P.W.3). In that written application she alleged:

• At about 12:30 p.m. on 24.08.2020, she woke up on hearing her minor daughter crying.
• The child narrated that while she was playing near a vehicle with one boy “Ankit”, the appellant (“Krishna uncle”) forcibly took her on his lap to his room, closed the door and:
  • attempted to insert his penis into her anus,
  • scolded her to stay quiet when she cried with pain,
  • rubbed his penis on her anus.
• The child allegedly slipped out of his hold, wore her pant, and ran back home.
• On checking, the mother allegedly found wound and scratches around the anus.

On this basis, Sachivalaya P.S. Case No. 89 of 2020 was registered on 24.08.2020 under:

• Section 376 IPC, and
• Sections 8 and 12 of the POCSO Act (non-penetrative offences).

2.3 Investigation, Charge-sheet and Charges

• The Investigating Officer (P.W.4 – SI Amrita Rani) completed investigation and filed Charge-Sheet No. 92 of 2020 dated 12.11.2020 under:
  • Section 376 IPC,
  • Sections 4 and 6 POCSO (penetrative and aggravated penetrative sexual assault).
• The Special POCSO Court took cognizance on 03.04.2021 under:
  • Section 376-AB IPC (rape on woman under 12 years), and
  • Sections 4 and 6 POCSO.
• Charges were framed accordingly; the appellant pleaded not guilty and claimed trial.

2.4 Evidence at Trial

The prosecution examined five witnesses:

Witness	Description
P.W.1	Father of the victim.
P.W.2	Victim (child witness).
P.W.3	Mother of the victim; informant.
P.W.4	Investigating Officer, SI Amrita Rani.
P.W.5	Dr. Anju Kumari, medical examiner of the victim.

Documentary evidence included:

• Written report and endorsements (FIR related exhibits).
• Seizure lists of:
  • the victim’s pant (allegedly blood-stained), and
  • the appellant’s underwear.
• Medical record extracts (Ext. P-8 and P-9).
• FSL reports (Ext. P-10, P-11).

The defence examined no witnesses, but relied on:

• Cross-examination of prosecution witnesses,
• Defence exhibits (A, B, C-1, C-2 – contents not fully detailed in the judgment), and
• The appellant’s detailed explanation under Section 313 CrPC alleging false implication arising from prior disputes with the victim’s father.

2.5 Trial Court’s Findings and Conviction

The Special POCSO Court (Additional Sessions Judge-VI-cum-Special Judge, POCSO, Patna) held:

• The victim’s testimony was reliable and not shaken in cross-examination.
• Parents of the victim, though “interested”, were “natural and best witnesses” in such cases, and their evidence could not be discarded on that ground.
• There was no evidence of prior enmity; hence false implication was unlikely.
• Injury and redness around the anus, as described by witnesses, supported a case of penetrative sexual assault.
• The child was 5–6 years old, thus clearly a “child” under Section 2(d) POCSO.

On this basis, the court found the appellant guilty under Section 6 POCSO and sentenced him to:

• 20 years’ simple imprisonment, and
• Fine of ₹25,000 (with 6 months’ SI in default),

while effectively treating the allegation as aggravated penetrative sexual assault.

2.6 Appeal to the High Court

The appellant challenged both the judgment of conviction (09.11.2022) and the order of sentence (15.11.2022) before the Patna High Court. Notice to the informant (respondent no. 2) was held to be duly served but she did not appear. The Court heard:

• Mr. Md. Irshad as Amicus Curiae for the appellant, and
• Mr. Dilip Kumar Sinha, APP for the State.

The judgment was reserved on 18.11.2025 and delivered on 25.11.2025 by a Bench comprising:

• Hon’ble Mr. Justice Sourendra Pandey (author of the judgment), and
• Hon’ble Mr. Justice Rajeev Ranjan Prasad.

3. Key Issues before the High Court

The appeal raised multiple interconnected issues:

1. Child witness competency – Whether the trial court erred in not testing the competency of the 5–6 year old victim (P.W.2) before recording her evidence, and whether her testimony, given her admission of tutoring, could safely form the sole basis for conviction.
2. Contradictions and “improvements” – Whether the changes from the initial version in the written complaint (rubbing on the anus) to later testimony (alleged penetrative assault on both anus and vagina with bleeding) undermined the prosecution case.
3. Medical and forensic evidence – Whether the medical evidence, which:
   • showed no injury to the vagina or labia,
   • found only redness and swelling around the anal opening,
   • found no spermatozoa, and
   • rendered blood group testing inconclusive,
   could sustain a conviction for penetrative sexual assault.
4. Investigation lapses – Effect of:
   • Failure to medically examine the accused under Section 53A CrPC.
   • Failure to examine material witnesses such as the boy “Ankit”, the officer and his family, and “Moiuddin Khan” (owner of a folding cot mentioned as part of the scene).
   • Inadequate description of the room, door, and locking mechanism, despite the prosecution theory of forced confinement and escape by a 5-year-old.
5. Applicability of Section 6 POCSO (aggravated penetrative sexual assault) – Whether the alleged conduct, even if partly accepted, amounted to “penetrative sexual assault” as defined under Section 3 POCSO.
6. Scope of Section 29 POCSO presumption – Whether the presumption of guilt under Section 29 could be invoked to sustain conviction when the prosecution’s evidence contained serious inconsistencies and lacked foundational reliability.

4. Summary of the Judgment

The High Court allowed the appeal and acquitted the appellant, setting aside the conviction and sentence under Section 6 POCSO. The key conclusions were:

• The victim’s testimony, though central, was not of the “sterling” quality required to sustain conviction in the face of:
  • admitted tutoring by parents and police, and
  • material improvements over the initial version.
• The trial court failed to assess the child’s competency as mandated by law before recording her evidence, undermining the reliability of the testimony.
• The medical evidence decisively ruled out rape:
  • No injury to the vagina or labial area.
  • Only redness and swelling around the anal opening, which the doctor conceded could be caused by a fall on a hard surface.
  • Absence of spermatozoa in vaginal and anal swabs.
  • Inability to opine even on “attempt of rape”.
• In these circumstances, it was unsafe to treat the allegation of external rubbing as “penetrative sexual assault”, and the trial court had “grossly misdirected itself” in doing so.
• The prosecution did not prove “foundational facts” with sufficient cogency to trigger the Section 29 POCSO presumption. Even if presumptively applied, the defence had rebutted it on a preponderance of probability by:
  • Highlighting serious investigative lapses and contradictions.
  • Bringing on record, via Section 313 CrPC, a plausible motive for false implication.
• The cumulative deficiencies in evidence and investigation made it unsafe to convict the appellant, even for a lesser offence, and hence he was entitled to the benefit of doubt.

The Court ordered that the appellant, who was in custody pursuant to the conviction, be released forthwith if not wanted in any other case.

5. Detailed Analysis

5.1 Appreciation of Evidence by the High Court

5.1.1 Variations between FIR and Court Testimony

The High Court carefully compared the initial written report with the oral testimony of P.W.1 (father), P.W.2 (victim), and P.W.3 (mother):

• Initial written report (24.08.2020) – Only allegation: the appellant took the child to his room, rubbed his penis around her anus, and the mother saw bruises around the anus.
• Later testimony:
  • P.W.1 (father) stated he saw abrasions around both anus and vagina.
  • P.W.3 (mother) claimed bleeding from both vagina and anus and blood-stained pant.
  • The child (P.W.2) also eventually spoke of rubbing in both vaginal and anal regions.

The Court characterised these as material “improvements” and embellishments, not minor discrepancies. The shift from:

• mere rubbing around the anus with scratch-like injury, to
• a full-fledged narrative of penetrative sexual assault with bleeding from two orifices,

was found significant enough to undermine the integrity of the prosecution story, especially when not corroborated by medical evidence.

5.1.2 Medical and Forensic Evidence

The medical report (Ext. P-8, P.W.5 – Dr. Anju Kumari) was pivotal. The High Court reproduced and relied on it in detail:

• No external injuries on the body of the victim.
• Pelvic examination:
  • No injury to the vagina or labial region.
• Laboratory findings:
  • No spermatozoa detected in vaginal or anal swabs.
  • Blood grouping results were inconclusive; the blood on the pant could not be definitively linked to the victim.
• Doctor’s opinion:
  • Given these findings, she could not even opine on “attempt of rape”.
  • In cross-examination, she accepted that redness and swelling around the anus could be caused by a fall on a hard surface.
• Age – Radiological and clinical findings placed the child in the age range of 5–6 years at the time of examination.

The Court concluded:

“We are of the view that in the present case the medical evidence rules out a case of rape and hence it would not be safe to convict the appellant on the basis of sole testimony of the child witness (P.W.2).”

In addition, the FSL report (Ext. P-11) showed:

• No semen detected on:
  • the victim’s pant (Ext. P-6/P.W.4), or
  • the appellant’s underwear (Ext. P-7/P.W.4).
• Blood grouping inconclusive; therefore, even the alleged blood stains could not be conclusively traced to the victim.

5.1.3 Child Witness Testimony and Admission of Tutoring

The victim (P.W.2), aged about 6 years at the time of deposition, made statements in cross-examination that seriously affected the reliability of her testimony:

• In paragraph 20 of her cross-examination, she candidly stated that her parents taught her what to say before coming to court.
• In paragraph 21, she added that earlier she had given her statement as told by “Daroga Ji” (the police officer/I.O.).

The Bench emphasised that these admissions, coupled with the lack of a recorded preliminary inquiry into her understanding and veracity, rendered her a tutored witness whose evidence could not safely form the sole basis of conviction.

Further, the Court underlined that the trial court had not conducted any competency test:

• There was no record of preliminary questions to ascertain whether the child understood the duty to speak truth or could give rational answers.
• The deposition simply recorded her age and moved directly into examination-in-chief and cross-examination.

In light of binding Supreme Court authority (discussed below) requiring a judicial officer to test and record satisfaction about a child’s competency, this omission was treated as a serious procedural and substantive deficiency.

5.1.4 Investigation Lapses and Omitted Witnesses

The Court noted multiple flaws in the investigation:

• Non-examination of key witnesses:
  • The boy “Ankit”, who was allegedly playing with the victim when she was taken away, was neither examined by the I.O. nor produced as a witness.
  • The officer for whom the victim’s father worked, and his family members, who lived in proximity and could corroborate surrounding circumstances, were not examined.
  • Though the I.O. recorded the statement of Moiuddin Khan (owner of a folding cot mentioned as part of scene description), she did not formally bring that statement on record.
• Inadequate scene of crime description:
  • The I.O. described the overall premises but gave no specific details of the room where the incident allegedly occurred.
  • Crucially, she did not describe the door, size, position of lock, type of locking mechanism, etc.

This was important because:

• The prosecution story involved a 5-year-old child being taken into a room, the door being locked from inside, and the child:
  • somehow freeing herself from the appellant’s grasp,
  • unlocking and opening the door, and
  • running back home.
• The High Court reasonably expected the I.O. to verify and document whether a child of that age could realistically operate such a lock.

Moreover, in cross-examination, the I.O. (P.W.4) admitted:

• She did not get the accused medically examined.
• She did not investigate prior enmity or disputes between the appellant and the victim’s family, despite defence raising it.

These omissions undermined the completeness and objectivity of the investigation.

5.1.5 Section 53A CrPC – Non-examination of the Accused

Section 53A CrPC specifically contemplates the medical examination of a person accused of rape, for collection of evidence. The APP fairly conceded before the High Court that:

• The appellant was not medically examined, despite being arrested on the same day.

Although the State argued that no adverse inference should be drawn on this score, the High Court treated it as an important investigative lapse, especially because medical examination:

• could have confirmed or ruled out recent sexual activity or injuries, and
• might have produced biological evidence (e.g., semen, pubic hair, DNA) relevant to the case.

In a case where the prosecution relied heavily on alleged physical contact, absence of such a basic investigative step weighed against the robustness of the prosecution case.

5.1.6 Defence Narrative and Section 313 CrPC Statement

Under Section 313 CrPC, the appellant gave a detailed explanation (partly reproduced in Hindi in the judgment) asserting that:

• The victim’s father consumed alcohol and “ganja” and was often at fault in his duties.
• The appellant had beaten him on one occasion and complained to superiors about his misconduct.
• The victim’s father had allegedly stolen a sack of rice belonging to their superior officer and kept it in his room, about which the appellant also complained.
• The victim’s father allegedly offered the appellant a bribe of ₹25,000 (treating it as “liquor money”) which he refused.
• Because of these incidents and complaints to superiors, the victim’s father bore a grudge and allegedly implicated the appellant falsely.

The Court took note of this explanation along with the victim’s own admission that:

• Her father was scolded by the officer and his wife when he did something wrong.

Given the serious shortcomings in the prosecution case, the defence version attained plausibility on the preponderance of probabilities, sufficient to rebut any presumption under Section 29 POCSO (discussed below).

5.2 Legal Reasoning and Principles Applied

5.2.1 Competency of Child Witnesses and the Duty of the Trial Court

The High Court placed reliance on Supreme Court decisions in:

• Pradeep v. State of Haryana, AIR 2023 SC 2345, and
• P. Ramesh v. State Represented by Inspector of Police, (2019) 20 SCC 593,

as well as its own Division Bench decision in Rudal Chaupal v. State of Bihar, 2024 (2) BLJ 231, to reiterate:

• While a child’s testimony can, in principle, sustain a conviction, it must inspire confidence and be scrutinised with greater care.
• Before recording evidence of a child witness, the court must:
  • put preliminary questions to gauge her understanding, capacity to perceive, and sense of duty to speak truth; and
  • record its satisfaction regarding competency.

The Supreme Court in P. Ramesh (as cited and understood in this judgment) emphasised that this is a “bounden duty” of the judicial officer. The High Court found that:

• No such exercise was recorded by the trial court.
• Given that P.W.2 was only about 6 years old, this omission was particularly serious.

Combined with the victim’s admission of tutoring, the Court held it would be unsafe to base conviction solely on her uncorroborated testimony, especially when medical evidence contradicted crucial aspects.

5.2.2 Understanding “Penetrative Sexual Assault” under Section 3 POCSO

The core of the conviction was Section 6 POCSO (aggravated penetrative sexual assault), which presupposes proof of “penetrative sexual assault” as defined in Section 3 POCSO. The High Court noted that:

• The original version spoke only of rubbing the penis around the anus.
• Later versions alleged penetration and bleeding, but:
  • medical examination found no injury to the vagina or labia, and
  • no anal tear or laceration was documented, only redness and swelling around the anal opening.

On this basis, the Court held:

“We also observed that evidence of penetration to any extent was not found by the doctor and in absence of any such evidence, the conviction of the appellant under Section 6 of the POCSO Act cannot be sustained in law and the Trial Court has grossly misdirected itself in treating external rubbing as ‘penetrative sexual assault’ as defined under Section 3 of the POCSO Act.”

This is an important clarification: mere external rubbing, without evidence of penetration, does not satisfy Section 3 POCSO. At most, depending on credible evidence, such conduct may constitute:

• “sexual assault” under Section 7 POCSO (non-penetrative), or
• an “attempt” to commit penetrative assault under Section 18 POCSO,

but where the evidence itself is unreliable and contradicted by medical findings, conviction for penetrative assault (Section 3) or aggravated form (Section 6) is legally unsustainable.

5.2.3 Section 29 POCSO – Presumption and “Foundational Facts”

Section 29 POCSO provides:

“Where a person is prosecuted for committing or abetting 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.”

The High Court, following:

• Veerpal @ Titu v. State, Delhi High Court, CRL.A. 223/2023 (judgment dated 15.04.2024),
• Subrata Biswas v. State, 2019 SCC Online Cal 1815 (Calcutta High Court),
• Joy v. State of Kerala, (2019) 1 KLT 935, and
• its own decision in Heera Das v. State of Bihar & Anr., 2025 (2) BLJ 517,

reiterated that:

• The presumption under Section 29 is not automatic from mere accusation.
• The prosecution must first prove “foundational facts” – i.e., core ingredients of the offence – through credible, cogent evidence.
• Only when such foundational facts are established does the burden shift to the accused to rebut the presumption, typically by:
  • discrediting prosecution witnesses through cross-examination,
  • pointing out inconsistencies and improbabilities, and/or
  • leading defence evidence.
• The accused’s burden is by preponderance of probabilities, not beyond reasonable doubt.

The Delhi High Court in Veerpal @ Titu, as quoted, stressed that:

“…the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt… In view of [the inconsistencies], in absence of foundational fact not being proved beyond reasonable doubt, the reliance placed upon presumption under Section 29 & 30 of POCSO Act by learned Trial Court to base conviction, appears to be misplaced.”

Similarly, the Calcutta High Court in Subrata Biswas and the Kerala High Court in Joy, as summarised in Heera Das, warned that:

• Section 29 does not absolve the prosecution of the need to lead reliable, non-absurd evidence on the core facts.
• Courts must be vigilant that the presumption, if applied without careful evaluation of the basic facts, does not lead to injustice.

Applying these principles, the Patna High Court in Jai Krishna Yadav held that:

• The prosecution failed to establish foundational facts with integrity, given:
  • the contradictory versions of the alleged assault,
  • admitted tutoring of the child,
  • medical evidence negating penetration, and
  • investigation lapses.
• Even assuming the foundational threshold was marginally crossed, the defence had successfully rebutted any presumption by exposing “serious flaws and gaps” in the prosecution case (echoing the reasoning in Veerpal @ Titu).

This judgment thus firmly aligns Patna High Court with the line of authority that treats Section 29 as a conditional and rebuttable presumption, not a carte blanche to convict despite frailties in prosecution evidence.

5.2.4 Standard of Proof and Benefit of Doubt in POCSO Cases

While recognising the gravity of child sexual abuse and the legislative intent behind POCSO, the Court endorsed the balancing approach emphasised in Veerpal @ Titu, including the observation that:

“As a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma which is much more painful than the rigours of a trial and imprisonment.”

In Jai Krishna Yadav, the High Court concluded that:

• The prosecution had not proved guilt beyond reasonable doubt, the standard that continues to govern criminal trials even under POCSO.
• Given the combination of:
  • tutored testimony,
  • contradictions and improvements,
  • medical evidence contradicting core allegations, and
  • investigation lapses,
  the appellant was entitled to the benefit of doubt.

5.3 Precedents Cited and Their Influence

5.3.1 Supreme Court Decisions

• Pradeep v. State of Haryana (AIR 2023 SC 2345)
  • Referred for its cautionary approach to child witnesses.
  • Reinforces that while a child’s testimony is not to be discarded merely due to age, courts must be alert to the possibility of tutoring, imagination or suggestion.
• P. Ramesh v. State, (2019) 20 SCC 593
  • Emphasised that the trial judge must conduct a preliminary competence test of a child witness.
  • Underlined the duty to ensure the child comprehends questions and the obligation of truth before treating her as a competent witness.

These decisions shaped the High Court’s conclusion that failure to test the child’s competency and the evidence of tutoring significantly undermined the reliability of P.W.2’s testimony.

5.3.2 High Court Decisions on Section 29 POCSO

• Veerpal @ Titu v. State, Delhi High Court (CRL.A. 223/2023, 15.04.2024)
  • Clarified that Section 29 presumption arises only after the prosecution proves foundational facts beyond reasonable doubt.
  • Held that discrepancies, inconsistent timelines, and unreliable victim testimony can prevent the presumption from operating or can enable the accused to rebut it.
• Subrata Biswas v. State, 2019 SCC Online Cal 1815 (Calcutta High Court)
  • Stated that while Section 29 eases the prosecution’s task, it still must lay a credible foundation by establishing the primary facts of the alleged offence.
  • Observed that if the prosecution version is riddled with inherent contradictions and improbabilities, the presumption cannot be invoked to convict.
• Joy v. State of Kerala, (2019) 1 KLT 935
  • Held that the duty to rebut presumption arises only after the prosecution proves foundational facts.
  • Cautioned against mechanical application of Section 29 without due appreciation of essential facts.
• Heera Das v. State of Bihar & Anr., 2025 (2) BLJ 517 (Patna High Court)
  • Adopted the reasoning in Veerpal @ Titu, Subrata Biswas and Joy.
  • Held that where foundational facts (such as the victim being taken away and the act of rape) are themselves in doubt, Section 29 cannot be used as the “edifice” of conviction.

In Jai Krishna Yadav, the Bench expressly quoted paragraphs 33–35 of Heera Das and paragraph 20 of Veerpal @ Titu, aligning its analysis with these precedents and consolidating the interpretive approach to Section 29 within Patna High Court’s jurisprudence.

5.3.3 Patna High Court’s Own Precedent on Child Witnesses

The Court also referred to its earlier Division Bench ruling in Rudal Chaupal v. State of Bihar, 2024 (2) BLJ 231, where:

• The Supreme Court rulings in Pradeep and P. Ramesh were discussed in detail.
• The benchmark of a “sterling witness” was reiterated – a wholly reliable witness whose testimony can form the sole basis of conviction without corroboration.

In Jai Krishna Yadav, the Division Bench concluded that the victim could not be categorised as a “sterling witness” due to:

• admissions of tutoring,
• improvements in her version, and
• lack of medical corroboration.

5.4 Interaction Between Ocular and Medical Evidence

The case also underscores an important facet of criminal jurisprudence: the relationship between ocular (eyewitness) evidence and medical evidence in sexual offences.

• It is well-established that credible ocular evidence can override minor inconsistencies with medical evidence.
• However, when:
  • medical evidence directly contradicts key aspects of ocular testimony (e.g., alleged penetration with bleeding vs. complete absence of genital injury), and
  • the ocular evidence itself is tainted by tutoring, contradictions, or improbabilities,
  courts must be slow to convict.

In this case:

• The ocular version escalated from “rubbing” to “penetration with bleeding from two orifices”,
• while medical evidence showed:
  • no vaginal/labial injuries,
  • no spermatozoa,
  • no external marks of violence, and
  • only redness/swelling around the anus that could have innocuous causes.

This combination led the Court to hold that medical evidence ruled out rape and made it unsafe to accept the enhanced oral version of events.

6. Complex Legal Concepts Simplified

6.1 Child Witness and Competency Test

A child witness is not automatically disqualified from giving evidence. However, before recording such evidence, the judge must:

• Ask simple questions (e.g., name, school, colour of objects, difference between truth and lie) to see if:
  • the child understands what is being asked, and
  • appreciates the importance of telling the truth.
• Record whether the court finds the child competent to testify.

This is sometimes referred to as a voir dire or “preliminary examination” for competency. Its absence, especially in serious cases where the child’s evidence is central, can significantly weaken the prosecution’s case.

6.2 “Tutored Witness”

A witness is said to be tutored when:

• her version appears to be pre-prepared or rehearsed, often instructed by parents, police, or other adults, rather than a spontaneous recollection; or
• she expressly admits that she was told what to say.

Courts are wary of convicting solely on the testimony of a tutored child witness, unless there is strong corroboration from independent or medical evidence.

6.3 Section 29 POCSO and “Foundational Facts”

Section 29 POCSO creates a rebuttable presumption that the accused committed the offence once he is prosecuted under specific sections. However:

• The prosecution must first prove foundational facts – the basic, core elements of the alleged offence, such as:
  • that the victim is a child,
  • that the accused was present at relevant time/place,
  • that some sexual act occurred in circumstances linking the accused to it.
• If these facts are not credibly proved (e.g., due to contradictions, unreliable witnesses, contrary medical evidence), the presumption does not operate.
• Even where presumption arises, the accused can rebut it by:
  • pointing out inconsistencies,
  • leading contrary evidence, or
  • offering a plausible alternative narrative.

6.4 Section 3 vs Section 6 vs Section 7 POCSO

• Section 3 – Penetrative sexual assault:
  • Involves penetration of penis, any object, or any body part into the vagina, mouth, urethra, or anus of the child, or making the child do so.
  • Even slight penetration is sufficient in law.
• Section 6 – Aggravated penetrative sexual assault:
  • Penetrative assault under Section 3 but in aggravated circumstances (e.g., by a relative, public servant, or with particularly severe consequences).
  • Carries higher minimum sentences (e.g., not less than 20 years in some situations).
• Section 7 – Sexual assault:
  • Involves non-penetrative sexual contact, such as touching the child’s sexual parts or making the child touch the offender’s sexual parts, without penetration.

The key takeaway from this judgment is:

• Mere external rubbing without proof of penetration cannot be equated with “penetrative sexual assault” under Section 3.
• Courts must be careful to classify conduct correctly and not inflate non-penetrative acts into penetrative ones without evidence.

6.5 Standard of Proof – “Beyond Reasonable Doubt” vs “Preponderance of Probabilities”

• Beyond reasonable doubt:
  • Standard applied to the prosecution’s case in criminal trials.
  • Means the evidence must be so convincing that there is no reasonable doubt about guilt in the mind of a prudent person.
• Preponderance of probabilities:
  • Lower standard, often used in civil cases.
  • Applied to the accused’s burden when rebutting presumptions like Section 29 POCSO.
  • The accused need only show that his version is reasonably probable, not that it is absolutely true.

In Jai Krishna Yadav, the Court held that the prosecution had not met the “beyond reasonable doubt” standard, while the defence had presented a plausible alternative narrative sufficient to rebut any presumption on a preponderance of probabilities.

7. Impact and Significance

7.1 For Trial Courts in POCSO Cases

The judgment serves as a clear reminder that:

• Section 29 does not allow courts to dispense with rigorous scrutiny of evidence.
• Trial judges must:
  • Conduct and record a clear competency test for child witnesses.
  • Carefully note and address material improvements or contradictions in the child’s versions over time.
  • Ensure that medical evidence is properly correlated with oral testimony, particularly when serious injuries or penetration are alleged.
• Failure to do so can result in convictions being overturned even in serious POCSO cases.

7.2 For Investigating Agencies

The judgment implicitly sets higher expectations for police investigation in sexual offences against children:

• Mandatory medical examination of the accused under Section 53A CrPC should be treated as routine, not optional.
• All material witnesses (e.g., persons present nearby, individuals named in the FIR such as “Ankit”, relevant neighbours or co-workers) should be examined and, where appropriate, produced in court.
• Investigators should collect detailed, scientifically useful information about the place of occurrence, including:
  • measurements,
  • photographs,
  • description of doors, locks, lighting, etc.
• Allegations of prior enmity or motive for false implication raised by the defence should be investigated, not ignored.

7.3 For Defence Strategy in POCSO Trials

From a defence perspective, the case illustrates effective strategies, including:

• Thorough cross-examination of child witnesses to explore:
  • tutoring,
  • inconsistencies,
  • improbable details.
• Careful use of medical and forensic evidence to test the plausibility of the prosecution’s narrative.
• Presenting a detailed explanation under Section 313 CrPC to establish a plausible alternative motive (such as prior disputes), helping rebut the statutory presumption.

7.4 On the Classification and Sentencing of Sexual Offences

The decision draws an important line between:

• penetrative sexual assault (Sections 3 & 6) and
• non-penetrative sexual assault (Section 7),

and implicitly cautions against:

• over-classifying non-penetrative cases as penetrative in the absence of clear proof, simply because the victim is a child or the case is serious.
• Imposing extremely harsh sentences (e.g., 20 years SI under Section 6) without rigorous satisfaction that all elements of the aggravated offence are proved.

8. Conclusion

Jai Krishna Yadav v. State of Bihar is an important addition to POCSO jurisprudence from the Patna High Court. It reinforces that:

• The special statutory presumption under Section 29 POCSO is conditional on the prosecution first proving foundational facts with cogent evidence.
• Convictions cannot be sustained where:
  • the sole child witness is untested for competency,
  • admits to tutoring,
  • her version materially changes over time, and
  • medical and forensic evidence contradict core allegations of penetration and injury.
• External rubbing of genitals, without evidence of penetration, cannot be equated with “penetrative sexual assault” under Section 3 POCSO, and trial courts must avoid expanding aggravated charges without proof.
• Investigative lapses – including non-examination of the accused under Section 53A CrPC and failure to examine independent witnesses or document the crime scene in detail – can fatally weaken the prosecution case.

At a broader level, the judgment strikes a careful balance between the imperative of protecting children from sexual abuse and the equally important need to prevent wrongful convictions in highly stigmatising offences. It sends a clear signal to trial courts and investigators that procedural safeguards, high evidentiary standards, and meticulous investigation remain indispensable, even under a statute as victim-centric as the POCSO Act.