Child sexual offences under 12 years of age – Conviction for aggravated sexual assault under the POCSO Act was sustainable in the absence of evidence of penetration – Victim’s mother found the appellant sitting near the minor child of four years in a suspicious condition while wearing only a half-shorts – On being confronted, the appellant fled from the scene – Trial court convicted the appellant u/s 9(m) and 10 of the POCSO Act and sentenced him to seven years’ rigorous imprisonment with fine, which was maintained by the Hon’ble High Court – Supreme Court upheld the conviction and rejected the argument that penetration negated the offence, holding that conviction u/s 9(m) and 10 of the POCSO Act was supported by the evidence establishing sexual assault on a child below twelve years – However, modified the sentence and reduced it from seven years to six years’ rigorous imprisonment.

लैंगिक अपराधों से बालकों का संरक्षण अधिनियम, 2012 - धाराएं 9(ड) एवं 10

बारह वर्ष से कम आयु के बच्चों के विरुद्ध यौन अपराध - प्रवेशन के संबंध में साक्ष्य के अभाव में पॉक्सो अधिनियम के अंतर्गत गुरूत्तर लैंगिक हमले के लिए दोषसिद्धि यथावत रखी गई - पीड़िता की माता ने अपीलकर्ता को चार साल की अवयस्क बच्ची के पास संदिग्ध अवस्था में केवल हाफ-शॉर्ट पहने हुए बैठा पाया - सामना होने पर अपीलकर्ता घटनास्थल से फरार हो गया - विचारण न्यायालय ने अपीलकर्ता को पॉक्सो अधिनियम की धारा 9(ड) और 10 के अंतर्गत दोषी ठहराया और उसे जुर्माने के साथ सात साल के सश्रम कारावास की सजा सुनाई, जिसे माननीय उच्च न्यायालय ने भी यथावत रखा - माननीय उच्चतम न्यायालय ने दोषसिद्धि को यथावत रखा और इस तर्क को अपास्त कर दिया कि प्रवेशन न होना अपराध को नकारता है - न्यायालय ने अभिनिर्धारित किया कि पॉक्सो अधिनियम की धारा 9(ड) और 10 के अंतर्गत दोषसिद्धि बारह वर्ष से कम उम्र के बच्चे पर बलात्संग को स्थापित करने वाले साक्ष्यों द्वारा समर्थित थी - यद्यपि, सजा में संशोधन करते हुए इसे सात साल से घटाकर छः साल का सश्रम कारावास कर दिया गया। 

Relevant extracts from the judgment:

            It was stated that at about 4:30 p.m. PW-3 went inside to give food to the appellant. At that time, she saw the appellant wearing half shorts, sitting near the legs of the minor daughter. When asked what he was doing there, the appellant stood up and ran away. According to PW-3, the underwear of her daughter was down till her knees, and the frock was pulled up to the chest. She also stated that she called her husband by ringing an alarm and immediately, her husband came out to catch hold the accused who was running away and, hit him near the courtyard with a stick twice, but the appellant managed to flee. The crying daughter when asked about what had happened, she told in rural language that she had pain in her private part. PW-3 stated that the appellant was from her colony and she knew him. There is no good reason not to disbelieve the details revealed and the narration given about the incident by PW-3 - mother of the victim.

            It may be true that Dr. Priyanka Toppo (PW- 6) did not find external injury marks on the victim’s body and stated that there was no bleeding of any kind. According to Medical Officer Dr. Nitish Anand (PW-8), the appellant was capable of having an intercourse. It is well settled that the medical evidence will take a backseat and even if do not corroborate with the ocular evidence, where the ocular evidence is consistent and cogent, the later would be allowed to prevail. In the medical evidence in the instant case, the redness in the vagina of the victim was noticed. In any way the Court is inclined to hold that the account of the incident given by PW- 3 – the mother inspires confidence and deserves to be accepted.

            The fact that the victim was in a frightened state upon seeing the accused is a pointer in itself. The whole sequence of events in course of recording of evidence of PW-1, was tale-telling. The shock related to the happening of the incident which continued with the victim post-incident made its statement in the trauma-filled behaviour of the victim who was a 4 year-old girl.

            Section 7 of the POCSO Act defines sexual assault and Section 8 is the punishment for the said offence, which is imprisonment of either description for a term to be not less than three years, and which may extend to five years, with fine. The offence of aggravated sexual assault is Section 9. The punishment for the aggravated sexual offence is provided in Section 10, which is the imprisonment for a term not to be less than 5 years, and the same may extend to 7 years and shall also be liable to pay the fine. In the present case the appellant is convicted under Section 9(m), the trial court and the High Court having concurrently found that that the appellant had committed sexual assault on a child below 12 years, which falls under Section 9 read with Section 10.