Section 6 POCSO | Inconsistent Medical Evidence & Section 164 Statement Fatal to Penetrative Assault Charge: Madras High Court

“In the light of the contradictions in the evidence of PW1 in her earlier version before the learned Magistrate and before the Doctor, this Court is of the view that it would be highly unsafe to convict the appellant for the offence of penetrative sexual assault.”— In a seminal ruling, the Madras High Court, comprising Justice Sunder Mohan, has set aside a conviction for Aggravated Penetrative Sexual Assault, holding that oral testimony alleging penetration cannot sustain a conviction when directly contradicted by medical evidence and prior statements.

The Prosecution Case

The appeal arose from a judgment by the Fast Track Mahila Court, Vellore, which had convicted the appellant, Karuna @ Karunagaran, to ten years of rigorous imprisonment. The prosecution alleged that on March 15, 2015, the appellant abducted an eight-year-old neighbor, gagged her, and committed penetrative sexual assault.

The trial court had found the accused guilty under Section 366 of the IPC (Kidnapping) and Section 6 read with Section 5(m) of the POCSO Act (Aggravated Penetrative Sexual Assault). The appellant challenged this verdict, arguing that the medical evidence did not support the allegation of penetration and that the case was motivated by a property dispute.

“The victim even in her statement under Section 164 Cr.P.C., did not specifically state about the penetration.”

The Medical Evidence Conundrum

The High Court undertook a meticulous reappreciation of the evidence, focusing heavily on the inconsistencies regarding the specific act of penetration. While the FIR lodged by the victim alleged penetrative assault, the Court noted significant discrepancies in her subsequent statements.

Justice Sunder Mohan highlighted that during the investigation and in her statement recorded under Section 164 Cr.P.C., the victim had only stated that the appellant lay on top of her, without explicitly mentioning penetration. Furthermore, the medical evidence provided by PW12 (the Doctor) and the Accident Register (Ex.P15) recorded a history of "attempted rape." Crucially, the medical examination revealed that the victim's hymen was intact, with no injuries or excoriation found on her private parts.

Partial Reliability of Child Witness

Despite setting aside the conviction for penetrative assault, the Court refused to discard the victim's testimony in its entirety. Applying the principle of partial reliability, the Bench observed that the evidence of the child witness (PW1), corroborated by her great-grandmother (PW2) and sister (PW3), was trustworthy regarding the wrongful confinement and the sexual assault itself.

“PW1's evidence can be believed to the extent that there was sexual assault committed by the appellant and that there was an attempt to commit rape.”

The Court held that while the specific act of penetration was not proved beyond reasonable doubt, the prosecution had successfully established that the appellant had committed acts amounting to Sexual Assault on a child below twelve years of age.

Modified Conviction & Sentence

Consequently, the High Court modified the conviction from Section 6 (Aggravated Penetrative Sexual Assault) to Section 9(m) read with Section 10 (Aggravated Sexual Assault) of the POCSO Act.

Recognizing the gravity of the proven offence but acknowledging the absence of penetration, the Court reduced the sentence from ten years to five years of rigorous imprisonment. The sentence for kidnapping under Section 366 IPC was also reduced from seven years to five years. Both sentences were directed to run concurrently, with the benefit of set-off granted under Section 428 Cr.P.C.

Date of Decision: 15/12/2025