[POCSO] 'Penetration Sufficient, Presence Of Semen Not Necessary': Delhi High Court Upholds Conviction Of Man For Raping 5 Yr Old

The Delhi High Court has upheld the conviction and sentence awarded to a man for raping a 5 year old minor victim in a POCSO case. The Court observed that penetration is sufficient in order to constitute an offence under Section 376 (rape) of IPC and Section 6 of the POCSO Act and that presence of the semen is not necessary.

"Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is not necessary that semen needs to be essentially present," Justice Mukta Gupta observed.

The Court was dealing with an appeal challenging the judgment dated 12th January, 2018 wherein the appellant was convicted under sec. 6 of the POCSO Act. Sec. 6 of prescribes the punishment for aggravated penetrative sexual assault.

The appellant had also challenged the order on sentence directing him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 5,000 in default whereof to undergo simple imprisonment for one month.

It was the case of the appellant that at the time of incident the victim was a 5 years old child of impressionable age and thus he was implicated by tutoring the minor victim by her parents who were inimical to him. It was further argued that no recoveries were made from the appellant and that in the FSL report, no semen was detected which could have connected him to the offence.

According to the statement of the minor victim's mother, she was informed by the child that the appellant took her to his room, inserted his finger and male organ in her vagina after which she was crying due to pain. Statement of the minor child was also recorded under sec. 164 Cr.P.C. wherein she reiterated what was stated by her to her mother.

"The prosecutrix though a minor child of impressionable age soon after the incident told her mother when she was in pain and the fact that she was sexually assaulted is duly corroborated by the medical evidence on record and has been cross examined at length before the Trial Court. Her statement to the mother, in the MLC, statement recorded under Section 164 Cr.P.C. and before the Court are consistent which are sufficient to prove the offence alleged against the appellant beyond reasonable doubt," the Court said.

The Court therefore concluded that as per the statement of the minor victim and also her MLC, the prosecution was successful in proving beyond reasonable doubt that the appellant had committed the offence punishable under sec. 6 of the POCSO Act.

"The sentence of rigorous imprisonment for 10 years awarded to the appellant is the minimum sentence prescribed for the offence punishable under Section 6 of the POCSO Act. Thus, this Court finds no error in the impugned judgment of conviction and order on sentence. Appeal is dismissed," the Court ordered.

Case Title: RAM NAWAL v. STATE

Citation: 2022 LiveLaw (Del) 12

Click Here To Read Order