Andhra Pradesh High Court recently ruled that just because no semen was at the time of examination of a rape victim does not mean that the accused did not engage in penetrative sexual assault.
During the hearing, Justice Cheekati Manavendra Roy clarified that, according to section 3 of the PROTECTION OF CHILDREN FROM SEXUAL OFFENCE ACT (POCSO ACT) ejaculation of semen is not a necessary pre-requisite for the purpose of constituting the offence of penetrative sexual assault.
The court clarified that if there is evidence of penetration of the accused’s penis, any object or part of their body into the victim’s vagina, it is sufficient to constitute an offense of penetrative sexual assault, even without the ejaculation of semen, as defined under Section 3 of the POCSO Act.
The court was hearing an appeal brought by a person who has challenged the judgement of the ADDITIONAL DISTRICT and SESSION JUDGE which convicted him for the offence punishable under the provision of the POCSO ACT AND SECTION 376(2)(I) OF THE INDIAN PENAL CODE
The session judge awarded him imprisonment of 10 years and imposed a fine of Rs.5000.
The facts of the case are that when the victim and her elder sister were playing with other children in the ground behind their house, the accused approached them by luring them with chocolates. By giving chocolates, the accused lured the young girl to his residence where he had her lie by the fireplace before lifting her skirt and laying down on her. When the older sister reported the event to her mother and she arrived at the accused’s house, she spotted him lying over the victim and yelled. The accused then pushed the victim and fled the scene.
The defense counsel for the accused argued that based on the medical report, there was no proof of recent intercourse because semen was not discovered during the examination. He further argued that the trial court had incorrectly concluded that there had been penetrative sexual assault by failing to properly assess the medical evidence that was presented in court.
The accuse further stated that the girl’s mother had filed a case against the accused, because the family held a grudge against him for refusing to sell his property. It was further argued that except the testimony of the girl and her mother there was no other evidence to support their statement, hence it was not safe to rely only on their testimonies.
The ADDITIONAL PUBLIC PROSECUTOR appearing for the State contented that no mother would venture to involve the modesty of her girl for the purpose of taking vengeance against a person for not selling his property. The prosecutor argued that the victim may have experienced sexual intercourse based on the medical report, which indicated that one finger was inserted into her vagina and her hymen was torn with presence of blood.
The prosecutor stated that the judgement of the trial good 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 all witnesses found no valid reasons to disbelieve the testimony of the victim’s mother and upheld the trial court’s order.
Written by Vaishnavi Goel (BA.LLB), 6TH Semester, Punjab School of Law, Punjabi University, Patiala
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