POCSO Act | Physical Contact Of Penis With Female Genital Constitutes 'Penetrative Sexual Assault', Vaginal Insertion Not Necessary: Kerala HC

The Kerala High Court has held that penetration of male genital organ within the labia majora or vulva without penetrating the vagina will constitute the offence of penetrative sexual assault under Section 3 of POCSO Act.“… penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well.”The Division Bench comprising Justice P. B. Suresh Kumar and Justice Jobin Sebastian read the explanation of 'vagina' given under Section 375 of IPC into the POCSO Act by way of Section 2(2) of POCSO Act. Section 2(2) of POCSO Act says that the words not defined in the Act shall have the same meaning as defined in IPC or certain other laws. Section 375 of IPC mentions that vagina shall also include labia majora. The Court, therefore held that penetration into labia majora shall constitute the offence of penetrative sexual assault under POCSO.The Court observed that if the explanation of 'vagina' given under IPC is not read into POCSO Act, then a situation would arise where penile vaginal entry is required for the offence of penetrative sexual assault under POCSO but not for the offence of rape under IPC. The Court said that such an interpretation would go against the object of the POCSO Act.The petitioner had challenged his conviction by the POCSO court for offences under Section 376AB (punishment for rape on woman under 12 years of age) of IPC and Section 5 (aggravated penetrative sexual assault) of POCSO Act for repeatedly raping his 4.5-year-old neighbour.The appellant argued that the offence of penetrative sexual assault and rape would not stand as there was no rupture of hymen. As per the medical records there was redness on the labia majora of the victim girl and reddish abrasion on the both sides of outer margin of the vaginal orifice of upper part. The Court rejected the petitioner's argument saying that merely because hymen was not ruptured would not save the accused from the conviction for offence of rape.Child Witnesses Cannot Be Mistrusted As They Are More Prone To TutoringThe appellant argued that it is not safe to rely upon the solitary evidence of the child victim to give an order of conviction. The Court however rejected this contention saying that as per Section 118 of Indian Evidence Act, a child witness is competent to depose if she is competent of answering the questions put to her and to give rational answers. The Court further observed that merely because children are prone to tutoring, their evidence cannot be discarded. The Court also said that the child victim in this case withstood the cross examination and her evidence was free from contradictions and omissions. The Court also noted that the evidence of the child victim was corroborated by the medical evidence.The Court also said that there was no proof to show that the victim's family had any sort of animosity or grudge towards the appellant as to falsely accuse him. It observed that generally the mother of a minor child would not come up with a false complaint that her child was subjected to rape or sexual assault. It observed that the Court should not overlook factors like the inherent bashfulness of the females and the tendency to conceal such things. The Court added that while lodging the complaint, thoughts like the future of the victim, dignity of their family, the emotional well-being of the victim must have weighed in the mother of the victim.The Court however observed that if there is any previous animosity between the victim/ her parents and the accused which would motivate them to falsely implicate the accused, then the Court must be very cautious. In the instant case however, Court said there is no such proof.In Sexual Offence, Court Cannot Look For Independent Witness For CorroborationThe Court noted that offences in sexual nature is committed in secrecy and it is not prudent to look for corroboration of evidence by other independent witnesses. The Court however added that it was not safe to consider the evidence of all victims as 'gospel truth'. The Court said that the reliability of a victim would depend on the facts and circumstances of the case. The Court added that when they are relying on the solitary evidence of a victim, they should act with care and circumspection. It also said that courts can look for medical evidence for corroboration even though it is not mandatory. The Court remarked that the victim in a rape case stands on a higher pedestal than an injured witness and her sole testimony can be the basis of conviction, if it inspires the confidence of the court.On these observations, court refused to overturn the conviction. However, the court observed that life imprisonment was exorbitant and reduced the sentence to 25 years of rigorous imprisonment.Counsel for the Appellants:...

POCSO Act | Physical Contact Of Penis With Female Genital Constitutes 'Penetrative Sexual Assault', Vaginal Insertion Not Necessary: Kerala HC

Manju Elsa Isac

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