POCSO Act | Absence Of Semen In Penetrative Sexual Assault Will Not Weaken Victim's Testimony: Punjab & Haryana High Court

The Punjab and Haryana High Court has said that in case of penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012, victim's testimony cannot be question merely on the ground that no semen is detected in the DNA report.

Bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "when in the event of any penetrative sexual assault becoming committed, upon a minor victim, thus does not require semen being detected on the vaginal swabs of the prosecutrix. Resultantly, thereby the absence of any inculpatory semen on the vaginal swab of the minor victim also does not over-rule the evidentiary efficacy of the testification of the prosecutrix."

The Court was hearing an appeal against the conviction of accused  under section 376AB of IPC and section 6 of POCSO, who was sentenced for rigorous imprisonment of 20 years.

An 8 year old girl was repeatedly harassed by the accused and on the fateful day when she was playing outside with her friends, accused took her and committed rape upon the child. The victim narrated the story to her mother and an FIR was lodged.

Medical examination of both the victim and the accused was conducted. After the examination of the accused, he was taken to the Juvenile Justice Board and lated declared as child in conflict with law. After conducting the preliminary assessment the juevnile was tried as an adult. 

After examining the submissions, the Court noted that the issue of taking consent of the victim is out of question, since she is a minor and incapable of giving valid consent.

The division bench further noted that the victim was competent to depose and supported the case of prosecution.

"A wholesome, and, conjoint reading of the testification of the prosecutrix, as carried respectively in her examination-in-chief, and, in her cross-examination, especially when she in her examination-in-chief, has attributed an unrebutted incriminatory role to the accused, thus boost an inference, that the prosecutrix has rendered a truthful confidence inspiring version, in respect of the penal occurrence," noted the Court.

It highlighted that the testimony of the mother also corroborated with the version written in FIR.

The court rejected the contention that because the DNA report has not shown any traces of semen in the vaginal swab the testimony of the victim will be doubtful.

"Argument loses its sheen, as the above alluded clinching incriminatory evidence adduced by the prosecution, especially the confidence inspiring testification of the prosecutrix, thus overcomes the purported lack of incriminatory echoings in the results...as made over the relevant examinations, rather by the DNA expert," said the Court.

In the light of the above, the plea was dismissed.

Mr. Harpreet Singh, Advocate for the appellant.

Mr. Maninder Singh, Sr. DAG, Punjab.

Title: XXX v. XXX