Penetration To Any Extent Sufficient For Offence Under POCSO Act; Intact Hymen No Bar For Conviction: Meghalaya High Court

"To constitute the offence of rape, penetration, however slight, is sufficient... the provision of Section 3(a) of the POCSO Act says that a person is said to commit penetrative sexual assault if he penetrates his penis, to any extent, into the vagina of a child," High Court of Meghalaya, in a significant ruling dated May 6, 2024, held that an intact hymen does not negate a conviction for aggravated penetrative sexual assault under the POCSO Act if there is evidence of penetration to any extent.

A bench of Justice W. Diengdoh and Justice B. Bhattacharjee observed that the legal definition of penetration is broad enough to include even slight contact, affirming that the testimony of a child survivor, if found credible, can form the sole basis for conviction.

The case arose from an FIR filed in December 2018 alleging that the appellant, the victim's uncle, committed sexual assault on his 10-year-old niece. Following a trial, the Special Judge (POCSO), Nongstoin, convicted the appellant under Section 6 of the POCSO Act and Section 506 IPC, sentencing him to ten years of rigorous imprisonment. The appellant challenged this conviction before the High Court, primarily arguing that contradictions in the survivor's statements and a medical report showing an intact hymen rendered the prosecution's case doubtful.

The primary question before the court was whether a conviction under Section 6 of the POCSO Act could be sustained despite a medical finding that the survivor’s hymen was intact. The court was also called upon to determine if the survivor’s testimony was of "sterling quality" despite variations in her statements and whether an extra-judicial confession made before family members carried evidentiary weight.

Survivor's Testimony

The court meticulously examined the survivor's statements recorded under Sections 161 and 164 of the CrPC, as well as her deposition before the trial court. While the appellant’s counsel pointed out minor variations in how the incident was described, the bench found that the foundational facts remained consistent across all versions.

Minor Discrepancies Not Fatal To Prosecution Case

The bench noted that the survivor consistently maintained that the accused carried her to a bed and removed her clothing before the assault. The court emphasized that minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

Survivor Stands On Higher Pedestal Than Accomplice

Citing the Supreme Court’s ruling in Ganesan v. State, the court reiterated that a survivor of a sex offence is not an accomplice but a victim of another person's lust. Therefore, her evidence must receive the same weight as is attached to an injured witness in cases of physical violence, and there is no absolute rule of law requiring corroboration for her testimony.

Court Explains Legal Scope Of 'Penetration'

Addressing the appellant's primary defense regarding the medical evidence, the court delved into the statutory definition of "penetrative sexual assault" under Section 3 of the POCSO Act. The court noted that the law specifically includes penetration "to any extent," which does not necessarily require the rupture of the hymen.

Intact Hymen Does Not Disprove Sexual Assault

The bench highlighted that the absence of injury or an intact hymen is not a factor that must lead the court to absolve the accused. Referring to the precedent in Ranjit Hazarika v. State of Assam, the court observed that even slight penetration is sufficient to constitute the offence. Since the survivor testified that the accused touched her private parts with his penis while on top of her, the court held the offence was made out.

Extra-Judicial Confession Before Clan Meeting Admissible

The prosecution had also relied on an extra-judicial confession made by the appellant during a family and clan meeting. The court observed that multiple family witnesses confirmed the accused had admitted his mistake and sought forgiveness.

Voluntary Confession Carries Evidentiary Weight

The bench found these admissions to be voluntary and made without any threat or inducement. Relying on the settled position in Jagroop Singh v. State of Punjab, the court held that such a confession, when found true and voluntary, can be relied upon to convict the accused.

The High Court concluded that the trial court’s judgment suffered from no legal or factual infirmities. It affirmed that the relationship of the accused as the survivor’s uncle brought the act under the ambit of aggravated penetrative sexual assault. Consequently, the appeal was dismissed, and the ten-year sentence was upheld.

Date of Decision: May 06, 2024