Penetration Within Labia Majora Or Vulva Constitutes Penetrative Sexual Assault Under POCSO Act: Kerala High Court

The Kerala High Court has ruled that penetration of the male genital organ within the labia majora or vulva, even without full vaginal penetration, constitutes penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act.

A Division Bench of Justice P.B. Suresh Kumar and Justice Jobin Sebastian interpreted Section 2(2) of the POCSO Act in conjunction with the explanation of "vagina" under Section 375 of the Indian Penal Code (IPC), which includes the labia majora.

The Court held that this interpretation was necessary to maintain consistency between the definitions of sexual offences under IPC and POCSO, preventing any dilution of the latter’s objectives.

"Penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well," the Bench observed. 

Ruling in POCSO Conviction Case

The ruling came in a case where a man convicted under Section 376AB of IPC (rape of a woman under 12 years) and Section 5 of the POCSO Act (aggravated penetrative sexual assault) challenged his conviction. He argued that the medical evidence did not show hymenal rupture, contending that this invalidated the charges of rape and penetrative sexual assault.

However, the Court rejected this argument, clarifying that the absence of hymenal rupture does not absolve the accused if other medical and witness evidence establishes the offence. The medical examination had recorded redness on the victim’s labia majora and abrasions near the vaginal orifice, which corroborated the child’s testimony.

Child Witness Testimony Holds Evidentiary Value

Addressing the appellant's claim that a child's testimony is unreliable, the Court reaffirmed that, under Section 118 of the Indian Evidence Act, a child witness is competent if they can provide rational answers. It emphasized that while children are prone to tutoring, their testimony cannot be disregarded solely on this basis. The victim in this case withstood cross-examination, and her testimony was corroborated by medical evidence.

The Court also noted the absence of any evidence suggesting prior animosity between the victim’s family and the accused, reinforcing the credibility of the complaint. It stated that a mother would not falsely accuse someone of sexually assaulting her child, considering the societal stigma and emotional impact involved.

No Need for Independent Witness in Sexual Offences

Observing that sexual offences often occur in secrecy, the Court ruled that corroboration through independent witnesses is not necessary. While it acknowledged that a victim’s testimony must be scrutinized carefully, it held that a rape victim’s sole testimony, if credible, could be sufficient for conviction.

"In sexual offence cases, it is not prudent to look for corroboration by evidence of other independent witnesses to act upon the victim’s evidence, especially when offences of this nature are generally committed in secrecy. However, we are not unmindful of the fact that it is not safe to consider invariably the evidence of victims in all sexual offence cases as gospel truth. The reliability of the evidence of victims of sexual offences depends upon the facts and circumstances of each case. When a court is called upon to rely on the solitary evidence of a victim of a sexual offence, the court must act with much care and circumspection. Moreover, the court can also verify whether there is medical evidence to corroborate the evidence of the victim, though the same is not a must," the Bench said. 

Sentence Reduced from Life Imprisonment to 25 Years

While upholding the conviction, the Court reduced the accused's sentence from life imprisonment to 25 years of rigorous imprisonment, deeming the original sentence excessive.

"..the finding of guilt and the judgment of conviction passed by the trial court in this case against the accused stand confirmed. However, the sentence imposed on the accused is modified and he is ordered to undergo rigorous imprisonment for 25 years and to pay a fine of Rs. 25,000/-. In default of payment of the fine, the appellant/accused shall undergo rigorous imprisonment for two years," the Court ordered while allowing the Appeal. 

Cause Title: XXX v. The Deputy Superintendent of Police and Another [Neutral Citation No. 2025:KER:14285]

Appearance:-

Appellant: Advocates T. G. Rajendran, T. R. Tarin

Respondent: Advocate Bindu O. V. (PP)

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