Slight Penetration Without Any Visible Injury Enough To Constitute Rape & Aggravated Penetrative Sexual Assault Under IPC & POCSO Act: Sikkim HC

The Sikkim High Court recently held that a slight penetration without any visible injury is enough to constitute offence of rape and aggravated penetrative sexual assault under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act. A Division Bench of Justices Bhaskar Raj Pradhan and Meenakshi Madan Rai noted,

"Penetration to any extent is sufficient to constitute rape under IPC and penetrative sexual assault under the POCSO Act. The victim's deposition is specific, consistent and clear that the appellant had inserted his penis into her vagina."

The present appeal was filed against the judgement of the Special Judge under the POCSO Act, who convicted the appellants under Section 376AB of the Indian Penal Code, 1860, and 5(m) of the POCSO Act.

While appearing for the appellants, Advocate B.K. Gupta referred to the victim's medical report, where no visible external injuries were recorded. It only revealed marks over the labia minora, which is not sufficient to charge for penetrative sexual assault, it was argued. He also submitted that a vital prosecution witnesses turned hostile, thus making the prosecution's case weak.

Additional Public Prosecutor S.K. Chettri submitted that the impugned judgement does not need any interference and that besides the victim, the prosecution also examined her mother and her father, all of whom identified the appellant.

The impugned judgement by the Special Judge had her opinion that the victim was a child below the age of 12 years and has also considered the testimony of the victim firm and clear. She had deposed about the incident and as to how the appellant had inserted his penis to her vagina, which is consistent with her statement under Section 164 CrPC.

The present Court held that the decision of the Special Judge was correct as the prosecution was able to make its case beyond a reasonable doubt. Upholding the decision of the Special Judge, the High Court

"The victim's testimony is not only consistent but fairly detailed, describing the ordeal she went through. There is sufficient corroboration to the "victim" s testimony by the other prosecution witnesses as correctly appreciated by the learned Special Judge."

Case Title: Subhash Chandra Chettri v. State of Sikkim

Citation: 2022 LiveLaw (Sik) 10

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