Savvy Thakur
Published on: October 26, 2022 at 20:27 IST
According to the Meghalaya High Court, “Aggravated Penetrative Sexual Assault” does not require complete or deep penetration for the POCSO Act to apply, and the offence would be committed by even the tiniest amount of penetration.
The bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh confirmed the man’s conviction under Section 5(m) of the POCSO Act for raping a 7.5-year-old girl and receiving a 15-year sentence from the trial court.
The prosecution’s case is that a 10-year-old neighbour told the survivor’s mother that he saw the appellant and her daughter (the victim) in the jungle near her home.
The mother questioned her daughter after receiving this information, and she informed her daughter that the appellant/convict “sexually assaulted her after luring her with Rs.10/- and bought ‘Rum Pum’.”
The medical examiner was of the opinion that there were indications of recent vaginal penetration during the examination.
In his defense, the appellant argued that the appellant, who was said to have been 60 at the time, was not examined by a doctor to see if he could have sex.
His final argument was that the victim’s medical examination was performed more than 24 hours after the incident, so the tentative opinion in the report that the survivor had been sexually assaulted within the previous 24 hours would not apply to the time of the incident.
Court Observations
The bench noted that the victim, now 11 years old, recounted the four-year-old incident during the trial and backed up the statement she had made concurrently in accordance with Section 164 of the Code almost exactly.
The Court also said that the statement of the survivor came across as natural and believable, and that the appellant didn’t say why he was there when the incident happened.
In addition, the Court noted that the accused had provided contradictory statements during his Section 313 of the Code examination, which established his guilt.
The Court noted that the medical examination report had revealed penetration, albeit at the level of the introitus, and that the factum of penetration was medically established, despite the fact that the hymen may have been intact to indicate that the extent of penetration may not have been to any great length.
In this regard, the Court also held that for the purpose of the relevant provision, penetrative sexual assault does not require complete or deep penetration; rather, even the tiniest amount of penetration would be sufficient.
The Court made a significant observation, noting that the appellant should have had a medical exam to see if he could keep an erection.
However, the Court added, the fact that the investigating agency might not have been aware of the situation would not necessitate the dismissal of the case against the appellant on this basis.
As a result, the Court denied the convict’s appeal, reasoning that the trial court was justified in concluding that the appellant had sexually assaulted the minor survivor and that this was proven beyond a reasonable doubt.