POCSO | Ejaculation Of Semen Not Required To Prove Penetrative Sexual Assault: Punjab & Haryana High Court

The Punjab & Haryana High Court upheld the conviction of rape and penetrative sexual assault against a minor under the Protection of Children from Sexual Offences Act, 2012 (POCSO), observing that the presence of semen is not required to be proved for penetrative sexual assault.

Justice Sureshwar Thakur and Justice Kuldeep Tiwari said, "When in the event of penetrative sexual assault becoming committed, upon a minor victim, thus does not require ejaculation of semen into the vagina of the minor victim. Resultantly, thereby the absence of any inculpatory semen in the vaginal swab of the minor victim also does not over-rule the evidentiary efficacy of the testification of the prosecutrix."

These observations were made while hearing an appeal filed by a man convicted for committing rape on a minor under Section 6 of the POCSO Act and sentenced to 20 years of imprisonment in 2022.

The Court rejected the contention that the relationship between the minor prosecutrix and the accused was consensual.

"Any defence raised by the accused that the sexual assault, which became committed upon the prosecutrix was a sequel of the latter purveying consent to the accused rather becomes completely insignificant," the Court said.

The bench also noted that the prosecutrix deposed in the Court that the accused incited her for marriage and on the pretext of marriage committed rape upon her on several occasions.

Perusing the DNA report, the Court noted that the semen was not present in the private part of the victim at the time of medical examination and "the DNA expert concerned, could not from the relevant material, as became sent to him, draw any incriminatory compatible matchings rather inter se the DNA profiling of the victim, and, the DNA profiling of the accused."

However, the Court refused to accept the submission that the absence of semen would mean that the testification given by the prosecutrix is false.

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

Title: XXXX v. State of Punjab

Citation: 2024 LiveLaw (PH) 294