Srinagar, May 2, KDC: In a recent order dealing with the threshold for framing charges under the Protection of Children from Sexual Offences (POCSO) Act, the Court of Principal Sessions Judge, Baramulla, has held that a charge of penetrative sexual assault cannot be sustained solely on the basis of a medical report when the alleged victim has not leveled any allegation of sexual assault in her judicial statement.
The court, presided over by Jawad Ahmad, passed the order while hearing a case arising out of FIR No. 245/2025 registered at Police Station Pattan against Mohammad Shahzad Shah (alias Sajad Shah). The accused had been booked under Section 137(2) of the Bharatiya Nyaya Sanhita (BNS) and Sections 3/4 of the POCSO Act.
According to the prosecution case recorded in the order, a written complaint was filed on December 30, 2025, by the brother of the girl, alleging that the accused kidnapped his minor sister from Kharwanipora, Tangmarg, on the evening of December 29, 2025. Acting on the complaint, Police Station Pattan registered the FIR and commenced investigation.
During the course of the investigation, the police recovered the girl on January 7, 2026, from the possession of the accused at an IT Park in Chandigarh. She was subsequently brought back to Pattan and taken to PHC CNC Pattan for a medical examination on January 8, 2026. The accused was arrested on January 7, 2026, and remained in custody thereafter.
The prosecution submitted before the court that the date of birth certificate obtained from Government Girls Middle School Tantraypora, Tangmarg, showed the girl was a minor of 15 years at the time of the alleged offence. It further argued that the examining doctor noted the victim’s hymen was not intact and that, as per the history given by the victim, sexual intercourse had taken place. On this basis, the prosecution prayed for framing of charges under both Section 137(2) BNS and Section 4 read with Section 3 of the POCSO Act.
The defence counsel, Adv Suhail opposed the plea, arguing that while the victim was a minor as per her date of birth certificate, there was no material placed with the charge sheet to prima facie disclose the commission of the offences.
The defence submitted that the most critical piece of evidence was the statement of the victim recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). In that statement, the victim stated that she had gone with the accused of her own free will and did not say anything that attracted the provisions of the POCSO Act. The defence prayed for the discharge of the accused.
After hearing both sides, the court closely examined the statement of the victim recorded under Section 183 BNSS and other material on record.
“I had gone along-with Shahzad resident of UP of my own free will and he did not compel me to accompany him… I remained at Chandigarh along-with Shahzad for nine days. My family knew that I was in contact with Shahzad since they seized my mobile phone, my family beat me as such. I was compelled to fled away from my home,” quoting from her (victim) statement, the court noted.
The court observed that because the victim was a 15-year-old minor, her consent to flee with the accused held no legal sanctity. Therefore, taking the girl to Chandigarh without the consent of her guardian prima facie attracted Section 137(2) of the BNS.
However, the judge held that the statement of the victim did not attract any of the provisions of the POCSO Act, particularly Section 3. The court ruled that a doctor’s report is only corroborative in nature and would have relevance only if the victim had testified that she was subjected to penetrative sexual assault by the accused.
In the absence of a foundational allegation in her statement, the court held that no prima facie case under Section 4 read with Section 3 of the POCSO Act was made out.
“For the aforesaid reasons, I am of the considered opinion that prima-facie offence punishable under Section 4 r/w 3 of the POCSO Act is not made out nor any ground exists to proceed against the accused,” the court observed while discharging the accused of the POCSO offences.
At the same time, the court found that a prima facie case under Section 137(2) of the BNS was made out and formally framed charges under that provision. The accused pleaded not guilty to the charges.
Since the surviving offence under Section 137(2) BNS is bailable, the court accepted the accused’s bail application. He was directed to be released on bail subject to furnishing a bail bond with one surety to the tune of Rs 50,000.
Finally, as the remaining offence is triable by a Judicial Magistrate, the Sessions Court transferred the case file to the Court of Judicial Magistrate (Sub-Judge), Pattan, for disposal under law. The accused and his counsel were directed to appear before the transferee court on May 12, 2026. (KDC)
