Court cites lack of medical evidence for penetrative assault, convicts accused of aggravated sexual assault under lesser provision.
In a significant judgment, the Allahabad High Court has overturned the life imprisonment sentence of Sunil, who was initially convicted under Sections 376(2)(i) of the Indian Penal Code (IPC) and Sections 5(m) and 5(n) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. The Division Bench, comprising Justices Salil Kumar Rai and Vinai Kumar Dwivedi, modified the conviction to aggravated sexual assault under Section 10 of the POCSO Act, citing insufficient evidence to support the charge of penetrative sexual assault.
The case stemmed from an incident on September 7, 2017, when Sunil was accused of sexually assaulting a five-year-old girl in Varanasi. The trial court had sentenced him to life imprisonment based on the victim's testimony and the statutory presumption under Section 29 of the POCSO Act. However, the High Court found critical gaps in the prosecution's case, particularly the absence of medical corroboration for the alleged penetrative assault.
The judgment emphasized that statutory presumptions under Sections 29 and 30 of the POCSO Act do not automatically apply unless foundational facts are established beyond reasonable doubt. The court noted the lack of external or internal injuries on the victim, as recorded in the medical examination conducted shortly after the incident, which contradicted the prosecution's claim of bleeding and penetrative assault.
While the court dismissed the charge of penetrative sexual assault, it upheld that the accused committed aggravated sexual assault, as the victim consistently testified that Sunil took her to the terrace, made her lie down, and touched her inappropriately. Consequently, the court sentenced Sunil to imprisonment already undergone and imposed a fine of Rs.50,000, with 80% to be paid to the victim.
This ruling underscores the judiciary's duty to meticulously evaluate evidence, especially in sensitive cases involving child victims, and reaffirms the principle that statutory presumptions must be backed by concrete foundational facts.
Bottom line:-
Conviction under Sections 5(m) and 5(n) read with Section 6 of the POCSO Act and Section 376(2)(i) IPC cannot be sustained without proof of penetration and foundational facts to invoke statutory presumption. However, evidence of sexual assault without penetration can lead to conviction under Section 10 of the POCSO Act.
Statutory provision(s): Sections 5(m), 5(n), 6, 7, 9(m), 9(n), 10, 29, and 30 of the POCSO Act, Sections 375, 376(2)(i) of the IPC, Section 164 of the Cr.P.C.
Sunil v. State of U.P., (Allahabad)(DB) : Law Finder Doc id # 2942240
