'External Rubbing' Does Not Constitute Penetrative Sexual Assault Under POCSO Act: Patna High Court

The Patna High Court has recently clarified that “external rubbing” does not fall within the statutory definition of penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (“POCSO”). The Court further held that in cases where medical evidence negates the possibility of penetration, a conviction cannot rest solely on the uncorroborated testimony of a child witness.A Division Bench of the High Court, comprising Justice Rajeev Ranjan Prasad and Justice Sourendra Pandey, heard an appeal arising from the conviction of the appellant under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The Trial Court had found the appellant guilty and sentenced him to twenty years' rigorous imprisonment. As per the prosecution's case, the incident occurred while the victim's mother was asleep. The child allegedly woke her mother and reported that, while she had been playing, one Mr. Krishna forcibly took her onto his lap, carried her into his room, closed the door, and attempted to insert his penis into her anus. On appeal, the High Court overturned the conviction and acquitted the appellant. The Court observed material discrepancies between the statements of the victim and her parents, which cast doubt on the prosecution's narrative. It further noted that the medical evidence did not corroborate the alleged act of penetration as described. The High Court noted:“31. From the evidences which we have observed, hereinabove, it would be evident that the prosecution witnesses have tried to make out a case of penetrative sexual assault however, the medical evidence does not corroborate their version of the story as the doctor very specifically has pointed out that on pelvic examination, no injury on vaginal or labial region was found and only redness and swelling were found near the opening of the anus and, therefore, it cannot be said that penetrative sexual assault was committed upon the victim.”The High Court further observed that the victim was only six years old at the time of the alleged incident, yet the Trial Court had not undertaken any inquiry to assess her competence as a witness, as required under law. The Bench also relied on the medical evidence, noting that the examining doctor explicitly stated that no opinion could be offered regarding an attempt to commit rape. During cross-examination, the doctor additionally conceded that the redness and swelling noted on the child could also have resulted from a fall on a hard surface. The High Court further noted:“38. 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). 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.”The High Court eventually acquitted the Appellant ordered his release forthwith. Cause Title: Jai Krishna Yadav v. State of BiharCase Number: Criminal Appeal No. 205 of 2023Appearance: Mr. Md. Irshad appeared as Amicus Curiae for the Appellant. Mr. Dilip Kumar Sinha appeared for the State.Click Here To Read/Download Order

'External Rubbing' Does Not Constitute Penetrative Sexual Assault Under POCSO Act: Patna High Court

Rushil Batra

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