Ejaculation of semen not necessary to constitute penetrative sexual assault under POCSO Act: Andhra Pradesh High Court

The Andhra Pradesh High Court recently held that merely because semen was not detected at the time of examination of a rape survivor, does not mean that there was no act of penetrative sexual assault committed on the survivor by the accused..Justice Cheekati Manavendranath Roy clarified that according to Section 3 of the Protection of Children from Sexual Offences Act (POCSO Act), ejaculation of semen is not a necessary pre-requisite for the purpose of constituting the offence of penetrative sexual assault.“Even without ejaculation of semen, if the evidence on record shows that there is penetration of penis or any object or part of the body of the accused into the vagina of the minor girl, it is sufficient to constitute an offence of penetrative sexual assault as defined under Section 3 of the POCSO Act,” the judgment stated..The Court was considering an appeal filed by a person challenging the judgement of the Additional District and Sessions Judge which convicted him for the offence punishable under the provisions of the POCSO Act and section 376(2)(i) of the Indian Penal Code (IPC).The sessions judge had sentenced him to 10 years rigorous imprisonment and also imposed a fine of ₹5,000..The prosecution case was that when the minor survivor along with other children including her elder sister were playing behind her house, the appellant-accused approached them and lured them by offering chocolates. When the other children ran away, the accused took the minor girl to his house by offering chocolates, and made her lie at the hearth in his house and lifted her skirt and lay down on her.At that time, on receipt of information from the survivor's elder sister, their mother reached the house of the accused and she found the accused lying on her daughter. When she raised her voice, the accused got up, pushed her away, and fled the scene..The counsel appearing for the accused contended that as per the medical report, there was no evidence of recent sexual intercourse as semen was not detected at the time of examination of the minor girl.He further contended that the trial court had not appreciated the medical evidence on record properly and had arrived at an erroneous conclusion that there was penetrative sexual assault.The accused further claimed that the survivor's family filed the sexual assault case against him due to the grudge they hold against him for refusing to sell his property as allegedly demanded by the survivor's mother.He argued that except the evidence of the girl and her mother, there was no corroborative evidence to their testimony and in its absence, it is not safe to rely on their testimonies..The Additional Public Prosecutor appearing for the State contended that no mother would venture to involve the modesty of her minor girl for the purpose of wreaking vengeance against the accused simply for not conceding to the demand to sell some property of the accused.He further contended that the survivor might have been subjected to sexual intercourse as the medical report stated that the vagina admitted one finger and the hymen of the victim girl was torn with presence of blood.He argued that the judgment of the trial court was perfectly sustainable under law and it does not suffer from any legal infirmity..The High Court after careful consideration of the facts, medical reports and statements of the witnesses said that there were no valid grounds emanating from the record to disbelieve the testimony of the victim girl’s mother.Accordingly, the Court dismissed the criminal appeal filed by the accused and upheld the trial court’s order..[Read Judgment]