'Aggravated Penetrative Sexual Assault' Under POCSO Act Doesn't Require Deep Or Complete Penetration: Meghalaya High Court

The Meghalaya High Court has observed that for the purpose of the POCSO Act, 'Aggravated Penetrative sexual assault' does not require deep or complete penetration and even the slightest amount of penetration would constitute the offence.

With this, the bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh confirmed the conviction of a man under Section 5(m) of the POCSO Act who was sentenced to 15 years of rigorous imprisonment by the trial court for committing rape upon a 7.5-year-old girl.

The case in brief

As per the prosecution's case, a 10-year-old neighbor informed the mother of the survivor that he saw the appellant with her daughter (victim) in the jungle near her residence. Upon being so informed, the mother asked her daughter and she told her that the appellant/convict had "sexually assaulted her after luring her with Rs.10/- and bought 'Rum Pum'."

In the medical examination, an opinion was expressed by the medical examiner that there were signs suggestive of recent vaginal penetration.

In his defence, the appellant submitted that the appellant was not medically examined to ascertain whether the appellant, said to be aged 60 at the relevant time, was capable of performing sex.

It was his further argument that the medical examination on the victim was conducted more than 24 hours beyond the time of the incident and, as such, the tentative opinion expressed in the medical examination report to the effect that the survivor had been subjected to sexual assault within the previous 24 hours, would not cover the time of the incident.

Court's observations

The bench noted that during the trial, the victim, now 11 years old, recounted the incident that had taken place four years earlier and corroborated, almost to the finest detail, the statement that she had contemporaneously rendered under Section 164 of the Code.

The Court further noted that the statement of the survivor came through as natural and believable and that there was a failure on the part of the appellant to explain his presence at the place of occurrence. The Court also noted that the accused had made contradictory statements in course of his examination under Section 313 of the Code, through which, his guilt was established.

Regarding the medical opinion, the Court noted that the medical examination report had revealed penetration, albeit at the level of the introitus and even though the hymen may have been intact so as to indicate that the extent of penetration may not have been to any great length, the factum of penetration was medically established.

In this regard, the Court also opined that Penetrative sexual assault, for the purpose of the relevant provision, does not require deep or complete penetration and even the slightest amount of penetration would suffice for the purpose.

Significantly, the Court did note that the appellant ought to have been medically examined to ascertain whether he was capable of maintaining an erection, however, the Court added, merely because the investigating agency may not have been alert would not otherwise require the case made out against the appellant to be thrown out on such score.

Consequently, holding that the trial court was justified in arriving at the conclusion that it was established beyond reasonable doubt that the appellant had sexually assaulted the minor survivor, the Court dismissed the appeal filed by the convict.

Case title - Swill Lhuid v. State of Meghalaya & ors [Crl.A.No.17/2022]

Case citation: 2022 LiveLaw (Meg) 43

Click Here To Read/Download Order