[POCSO Act] Slightest penetration will constitute aggravated penetrative sexual assault: Meghalaya High Court

The Meghalaya High Court recently held that even the slightest penetration of male sexual organ inside vagina will constitute the offence of aggravated penetrative sexual assault under Section 5(m) of the Protection of Children from Sexual Offences Act (POCSO Act) [Swill Lhuid vs State of Meghalaya & Ors]. .A bench of Chief Justice Sanjib Banerjee and Justice Wanlura Diengdoh ruled that the offence under the POCSO Act does not require deep or complete penetration of penis inside vagina."Penetrative sexual assault, for the purpose of the relevant provision, does not require deep or complete penetration. The slightest amount of penetration would suffice for the purpose. The medical examination report revealed penetration...," the Court held.The Court, therefore, upheld the conviction of a man accused of raping a 7-year-old girl and dismissed his appeal against trial court conviction..The case arose when a first information report (FIR) was lodged by the survivor's mother in 2018. It was alleged by the mother that the appellant- accused had raped her daughter who was seven and a half years old.The examiner in the medical report also stated that there were signs suggestive of recent vaginal penetration. However, they issued a caveat saying that the final opinion would be expressed after receipt of the report from the forensic science laboratory.The appellant was convicted for aggravated penetrative sexual assault under POCSO Act and sentenced to 15 years’ rigorous imprisonment by the trial court..On appeal, the accused claimed that he was not medically examined to ascertain whether or not he was capable of sexual intercourse given that he was 60 years old at the time of the incident.Further, he said that since the medical examination of the survivor was conducted more than 24 hours after the alleged incident, the report saying that the survivor was sexually assaulted would not cover the time of the incident..The Court noted that during the trial, the survivor recounted the incident that took place almost 4 years ago and nearly perfectly corroborated the statement she had rendered under section 164 of the Code of Criminal Procedure (CrPC). Moreover, since the accused made contradictory statements in his examination under Section 313 of Code of Criminal Procedure, the court determined that his guilt was established..Thereafter, the Court noted that although the survivor's hymen was intact, the fact pertaining to penetration was medically established. Further, the assertion by defence that medical examination was conducted long after the time of incident was baseless."Even though the hymen may have been intact so as to indicate that the extent of penetration may not have been to any great length, the factum of penetration was medically established. There is no basis to the appellant’s assertion that the examination was conducted on the survivor long after the time of the alleged incident, particularly since the young witness claimed the incident to have taken place at or after 5 pm on March 2, 2018 and the survivor was examined at or about 4:30 pm on March 3, 2018," the bench stated..Notably, the Court also observed that the appellant should have been medically examined to ascertain whether or not he was capable of maintaining an erection, given his age. However, it said that the case made out could not be thrown out merely because the investigating agency may not have been alert."It is true that the appellant ought to have been medically examined to ascertain whether he was capable of maintaining an erection, given the age attributed to the appellant at the time of the commission of the offence. However, merely because the investigating agency may not have been alert would not otherwise require the case made out against the appellant to be thrown out on such score," the Court stated..The Court therefore held that the trial court was justified in concluding that the appellant's guilt was established beyond reasonable doubt and dismissed the appeal."The trial court was justified in arriving at the conclusion that it was established beyond reasonable doubt that the appellant had sexually assaulted the minor survivor...There is no merit in the appeal and no cause for interference with either the judgment of conviction or the consequent sentence awarded to the appellant," the Court observed..The Sikkim High Court in September this year also made observations on same line and held that slight penetration of male sexual organ inside vagina will constitute rape and aggravated penetrative sexual assault even in the absence of any visible physical injury.Appellant-accused was represented by Advocates HR Nath and R Biswa while State was represented by Advocate R Gurung..[Read Judgment]