Vague Expressions Such As “Bad Work” Cannot Be Presumed As Penetrative Sexual Assault Without Evidence': Patna HC Sets Aside Conviction
The Patna High Court has held that vague expressions such as “bad work” cannot, in the absence of clear ocular or medical evidence, be presumed to amount to penetrative sexual assault under the POCSO Act, setting aside the conviction of an accused under Section 4 of the Act.
A Division Bench of Justice Bibek Chaudhuri and Justice Chandra Shekhar Jha was hearing a criminal appeal filed by the appellant challenging the judgment of conviction dated 02.08.2018 and order of sentence dated 03.08.2018 passed by the Special Judge (POCSO), Munger. The Trial Court had convicted the appellant under Section 376(i) of the IPC and Sections 4, 8 and 12 of the POCSO Act, sentencing him to life imprisonment.
According to the prosecution, the incident occurred on 18.06.2018 when the victim, an 8-year-old girl, was alone at home. It was alleged that the appellant, a neighbour, entered the house, pulled down her pants and committed “bad work”.
The appellant contended that he had been falsely implicated due to neighbourhood disputes. It was argued that the medical evidence did not support the allegation of penetration and that the Trial Court had wrongly inferred penetrative sexual assault based on vague expressions and the presence of semen on the victim's clothing.
The State, on the other hand, relied on the testimony of the victim and the forensic report detecting semen on the seized pant, contending that the Trial Court had rightly inferred penetration.
Upon examining the evidence, the High Court found that the medical evidence did not support any case of penetration. It noted that the victim's secondary sexual characteristics were not developed and the medical findings negated any penetrative act. The Court observed:
“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 “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.”
The Court further held that the findings of the Trial Court, which treated the presence of semen as sufficient to infer penetration, were not legally sustainable. Accordingly, the Court set aside the conviction of the appellant under Section 376(i) IPC and Sections 4 and 12 of the POCSO Act.
However, considering the nature of the act and the consistent testimony of the victim, the Court upheld the conviction under Section 8 of the POCSO Act (sexual assault), holding that the offence made out was one of sexual assault and not penetrative sexual assault or mere harassment.
Case Title: Md. Khurshid @ Md. Khurshid Rayeen v. State of Bihar.
Case No.: Criminal Appeal (DB) No. 1100 of 2018.
Appearance: Mr. Praveen Kumar Agrawal and Mr. Santosh Kumar Singh appeared for the Appellant. Mr. Abhimanyu Sharma appeared for the Respondent.