POCSO Act| Ejaculation Of Semen Not A Necessary Pre-Requisite To Prove Penetrative Sexual Assault: Punjab & Haryana HC

The Punjab & Haryana High Court has recently upheld the conviction under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for committing rape of an 8 years old girl, observing that ejaculation of semen is not necessary pre-requisite for the purpose of proving penetrative sexual assault.

A division bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma observed, "Simply because semen was not detected, it cannot be said with all certainty that there was no penetration. All that is required to prove the offence of penetrative sexual assault defined under Section 3 of the POCSO Act is, mere penetration of penis or any object or part of the body into the vagina, mouth, urethra or anus of a child or mere insertion to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child and even if the accused manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child then also it constitutes an offence of penetrative sexual assault."

Perusing the definition of Penetrative sexual assault, the Court said, "Therefore, the accused, who has penetrated his male organ into the vagina of less than eight years old victim had committed aggravated penetrative sexual assault, which is punishable under Section 6 of Protection of Children from Sexual Offences Act."

The bench further added reading of the aforesaid Section, shows that ejaculation of semen is not necessary pre-requisite 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 a minor girl, it is sufficient to constitute an offence of penetrative sexual assault as defined under Section 3 of the POCSO Act.

These observations were made while hearing the appeal filed by an accused who was convicted under Section 365 of the IPC and under Section 6 of POCSO Act. Under Section 365 IPC, he has been sentenced to undergo rigorous imprisonment of 05 years and under Section 6 of the POCSO Act, to undergo rigorous imprisonment of 12 years.

Facts In Brief

In 2016, according to the prosecution, the neighbor of a 7-year and 9-month-old victim had taken her away. When the victim was recovered, a medico-legal examination was conducted. According to the disclosure statement of the accused, he admitted to committing rape upon the victim in the bushes.

At the culmination of the trial, after hearing both the side and appreciating the evidence on record the trial Court found the accused guilty for the offences punishable under Section 365 IPC and Section 6 of the POCSO Act.

The counsel for the appellant argued that since semen was not detected at the time of examination of victim, therefore, it clearly proves that there is no act of penetrative sexual assault committed by the accused against the victim.

She further contended that trial Court did not appreciate the medical evidence on record properly and arrived at erroneous conclusion that there is penetrative sexual assault committed by the accused against the victim, therefore, the impugned judgment of conviction and order of sentence of the trial Court is not sustainable under law.

Considering the submissions, the Court noted that victim though is a child witness, but is found to be trust-worthy and reliable witness who narrated the incident in detail which shows that she is competent witness and her version was true.

While rejecting the argument of counsel for appellant, the bench opined that "...actual sexual intercourse and discharge of semen has not taken place in this case but as per FSL report blood was found on the salwar, shirt and hymenal and vaginal swab of the victim. Therefore, for the mere fact that Ex. PA report of Forensic Science Laboratory revealed that no semen could be detected on belongings of victim, her version cannot be doubted."

It added further that simply because semen was not detected, it cannot be said with all certainty that there was no penetration.

The Court concluded that 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 a minor girl, it is sufficient to constitute an offence of penetrative sexual assault as defined under Section 3 of the POCSO Act.

Stating that the evidence of doctor is sufficient to prove that there has been an act of penetrative sexual assault committed by the accused against victim, the Court noted that, "injury on forchette & lower part of vagina suggests offence of rape committed with the victim."

Reliance was placed upon Tamil Nadu v. Ravi @ Nehru [2006(3) R.C.R (criminal) 500], in which the Apex Court said, "It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition."

The Court also referred to wherein the Apex Court said Wahid Khan v. State of MP [(2010) 2 SCC 9], " for an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity."

In the light of the above, the Court upheld the conviction and dismissed the appeal.

 Citation: 2023 LiveLaw (PH) 285

Case Title: X v. State of Haryana 

Geeta Singhwal, Advocate for the appellant.

P.P.Chahar, DAG Haryana.