Ejaculation Not Necessary Pre-Requisite For Purpose Of Proving 'Penetrative Sexual Assault' Under POCSO Act: Andhra Pradesh High Court

Upholding the conviction of an accused in a case of rape, the Andhra Pradesh High Court said all that is required to prove the offence of ‘penetrative sexual assault’, defined under Section 3 of the POCSO Act is, mere penetration.

In 2016, the accused was sentenced by trial court to undergo rigorous imprisonment for a period of ten years for committing aggravated penetrative sexual assault and rape on a six-year-old girl. In appeal, the counsel representing the convict argued that medical evidence shows that there is no proof of committing recent sexual intercourse on the victim girl as semen was not detected at the time of examination.

Rejecting the argument, the bench of Justice Cheekati Manavendranath Roy explained that a reading of Section 3 of the POCSO Act shows that "ejaculation of semen is not a necessary prerequisite for the purpose of proving penetrative sexual assault."

"Even without ejaculation of semen, if the evidence on record shows that there is penetration of penis or any object or part of the body of the accused into the vagina of the minor girl, it is sufficient to constitute an offence of penetrative sexual assault as defined under Section 3 of the POCSO Act. Even the same definition is given to the offence under Section 375 of IPC also," said the court.

Brief Facts

The accused mainly challenged the validity of the impugned judgment of conviction and sentence on the grounds that the medical evidence on record, as seen from the final report, and RFSL report, and the evidence of the doctor who examined the victim girl, show that there is no evidence of recent sexual intercourse on the victim girl, as semen was not detected at the time of her examination.

The counsel for the accused contended that the trial court did not properly appreciate the medical evidence on record and arrived at an erroneous conclusion that the accused committed penetrative sexual assault against the victim.

He further argued that as the accused refused to sell his property as demanded by the mother of the victim and her husband, they bore a grudge against him and got the case foisted against him.

According to the prosecution's case, the victim was playing behind her house with other children including her elder sister. The accused approached them and lured the victim by offering chocolates. When the other children ran away, the accused took the victim girl to his house and committed penetrative sexual assault. The victim's mother reached his house and raised the alarm. Thereafter, the accused pushed the victim and ran away.

The Public Prosecutor argued that motive attributed by the accused alleging his false implication in the case is absolutely false. It was also submitted that the evidence of the doctor "clearly shows that she opined that as blood was present and vagina is admitting one finger and hymen of vagina of the victim girl is teared, that the victim girl might have been subjected to sexual intercourse."

Verdict

The court observed that to prove that the accused had committed an offence of aggravated penetrative sexual assault against the victim girl, the prosecution primarily relied on the testimony of the victim girl's mother, who was an eyewitness to the incident, as well as the evidence of the victim girl and the doctor who examined her.

It took note of the evidence of the mother who had witnessed the accused committing the offence against her daughter. The court said that the mother of the victim child is a direct eyewitness, who has witnessed the accused lying on the victim girl in his house.

The court rejected the accused's contention that he had been falsely implicated because he refused to sell his house to the mother and that she bore grudges against him.

“No mother would venture to the modesty of her own daughter to wreak vengeance against a person, simply on the ground that he refused to sell away his property to her. Therefore, there is absolutely no truth or merit at all in the said defence taken by the accused attributing motive to the victim’s mother”, the court observed.

The court held that upon examining the evidence on record in the light of the elements of Section 3 of the POCSO Act, it is conclusive that the accused has committed penetrative sexual assault against the victim girl.

The court further took note of the deposition of the victim girl and the mother. This evidence, coupled with the medical evidence, conclusively proves that the accused committed an act of penetrative sexual assault on the victim, said the court.

"It cannot be said under any stretch of reasoning that the prosecution failed to prove that there was any penetrative sexual assault committed by the accused against PW.2," said the court, while dismissing the appeal.

Case Title: Miriyala Vajiram v. State of Andhra Pradesh

Citation: 2023 LiveLaw (AP) 20

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