The Sikkim High Court recently held that even a minor penetration without any visible injury is sufficient to constitute the offense of rape and grievous sexual assault under Section 376AB of the IPC as well as Section 5 of the POCSO Act.
A division bench of Justice Bhaskar Raj Pradhan and Justice Meenakshi Madan Rai said,
“Penetration to any extent is sufficient to constitute rape under IPC and sexual assault under POCSO Act. The statement of the victim is specific, relevant and clear that the appellant had inserted his penis into her vagina.”
The present appeal was filed against the decision of the Special Judge under the POCSO Act, which held the appellants guilty under Section 376AB of the Indian Penal Code, 1860 and 5(m) of the POCSO Act.
Advocate BK Gupta, appearing for the appellants, referred to the medical report of the victim, in which no external injury was recorded. He said the report only pointed to scarring on the labia minora, which is not enough to charge for penetrative sexual assault.
He also said that an important prosecution witness turned hostile, weakening the prosecution’s case.
Additional Public Prosecutor SK Chhetri submitted that no interference was required in the impugned judgment and that apart from the victim, the prosecution has also examined her mother and her father, all of whom identified the appellant.
The special judge, in his judgment, had held that the victim was less than 12 years of age. He has also considered the testimony of the victim to be firm and clear. She also explained the incident and how the appellant had inserted his penis into her vagina, which is in line with her statement under section 164 of CrPC.
The present Court held that the decision of the Special Judge was correct as the prosecution was able to prove its case beyond a reasonable doubt.
Upholding the decision of the Special Judge, the High Court said.