Court says absence of injuries or spermatozoa cannot override consistent testimony of child victim and eye-witness; statutory presumption under POCSO held to apply.
The Madras High Court has dismissed the appeal filed by a man convicted of repeatedly sexually assaulting his 10-year-old stepdaughter, affirming his life sentence under the Protection of Children from Sexual Offences (POCSO) Act and a separate conviction for criminal intimidation under the Indian Penal Code.
A Division Bench of Justices A.D. Jagadish Chandira and B. Murugesan upheld the trial court’s finding that the accused had committed aggravated penetrative sexual assault under Sections 5(l), 5(m) and 5(n) read with Section 6 of the POCSO Act. The court also sustained his conviction under Section 506(1) IPC for threatening to kill the child victim and her mother.
The case arose from a complaint lodged by the child’s mother after the girl disclosed that her stepfather had taken her into a room, undressed her, placed his penis between her thighs, and inserted his finger into her vagina. The prosecution further alleged that the accused had subjected the child to similar abuse on three earlier occasions and threatened to kill her and her mother if she revealed the assault.
During the trial, the prosecution examined 15 witnesses, including the child victim, her mother, a cousin who witnessed the incident through a window, medical officers, and the investigating officer. The defence argued that the medical evidence did not show injuries, spermatozoa, or damage to the hymen, and therefore the allegation of penetrative sexual assault was not proved.
Rejecting this argument, the High Court held that the definition of penetrative sexual assault under Section 3 of the POCSO Act focuses on the act of penetration itself “to any extent,” and does not require proof of physical injury or ejaculation. The Bench observed that medical evidence is only supportive and cannot displace consistent and trustworthy ocular evidence.
The court found the child victim’s account to be consistent from the earliest complaint to her statement before the Magistrate and her testimony in court. It also relied on the eye-witness account of the child’s cousin, who saw the accused lying naked on the victim through a window and immediately informed a neighbour. The judges said the child’s testimony was credible, required no further corroboration, and the suggestion that she had been tutored was unsupported.
The Bench also applied the statutory presumption under Section 29 of the POCSO Act, holding that once the prosecution proves foundational facts through unimpeachable evidence, the burden shifts to the accused to rebut the presumption. The court found that the accused failed to produce any material to dislodge that presumption, and mere suggestions in cross-examination
Bottom Line :
POCSO Act - Aggravated penetrative sexual assault - Absence of genital injuries, intact hymen or absence of spermatozoa does not by itself discredit prosecution case - Credible and consistent testimony of child victim, corroborated by eye witness, is sufficient - Once foundational facts are proved, presumption under Section 29 of POCSO Act operates unless rebutted.
Rajaraman v. Inspector of Police, (Madras)(DB) : Law Finder Doc id # 2984136
