POCSO | Merely Because Hymen Found To Be Intact, Does Not Mean Victim Not Subjected To Penetrative Sexual Assault: Delhi High Court Upholds Conviction

In a significant judgment , the Delhi High Court upheld the conviction of the appellant in a case involving charges under Section 376(2)(i) of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The court, while delivering its verdict, reduced the appellant’s sentence, highlighting the credibility of the child victim’s testimony.

The bench, headed by HON’BLE MR. JUSTICE AMIT BANSAL, found the child victim’s testimony to be reliable and trustworthy. The court noted that there were no inconsistencies in her statements and emphasized the importance of the child victim’s testimony. In the judgment, the bench stated, “The child victim in all her statements has supported the case of the prosecution and there are no inconsistencies in her statements. The child victim, in all her statements has consistently maintained that the accused removed her underwear and inserted his finger in her private parts.”

The court also considered the corroborative evidence provided by the mother of the child victim. The mother’s immediate actions, including confronting the accused and reporting the incident to the police, were deemed relevant and admissible as res gestae evidence under Section 6 of the Indian Evidence Act, 1872.

Addressing the issue of a key eyewitness (PW-6) turning hostile, the court held that this did not undermine the prosecution’s case. The judgment noted that material contradictions existed in PW-6’s testimony and the appellant’s defense, and the prosecution’s case could be sustained through other evidence.

The court further discussed the medical evidence in the case, stating, “Merely because the hymen of the child victim is found to be intact, it does not mean that the victim was not subjected to penetrative sexual assault.” The court relied on precedent judgments and the definition of penetrative sexual assault under the POCSO Act to support this observation.

Regarding sentencing, the court considered the appellant’s conduct during his incarceration, his age, and the absence of any involvement in other offenses. Consequently, the court decided to reduce the appellant’s sentence from twenty years to twelve years of imprisonment, while retaining the fine imposed by the Trial Court.

Delhi High Court’s verdict underscores the importance of treating the testimony of child victims with care and sensitivity, while also highlighting the need for justice to be served based on credible evidence.

Date of Decision: January 5, 2024

PRADEEP KUMAR VS STATE