External Rubbing Cannot Be Treated As Penetrative Sexual Assault: Patna High Court Acquits POCSO Accused

The appeal before the High Court arose from a judgment of conviction and the order of sentence passed in a POCSO Act case.

The Division Bench of Justice Rajeev Ranjan Prasad and Justice Sourendra Pandey held, “We are of the view that in the present case the medical evidence rules out a case of rape and hence it would not be safe to convict the appellant on the basis of sole testimony of the child witness (P.W. 2). We also observed that evidence of penetration to any extent was not found by the doctor and in absence of any such evidence, the conviction of the appellant under Section 6 of the POCSO Act cannot be sustained in law and the Trial Court has grossly misdirected itself in treating external rubbing as “penetrative sexual assault” as defined under Section 3 of the POCSO Act.”

“The Bench stated, “On complete reading of the evidences available on the record, we are of the considered opinion that the victim cannot be put in the category of sterling witness especially for the fact that she has admitted in her deposition that she was tutored by her parents to depose before the Court and also by the I.O. prior to giving the evidence”, it added.

Amicus Curiae Md. Irshad represented the Appellant while APP Dilip Kumar Sinha represented the Respondent.

Factual Background

The prosecution case was based on the written application given by the informant/mother of the victim (P.W. 3). In her written report, she stated that one afternoon she woke up from her sleep after hearing her daughter crying. The daughter disclosed that when she was playing, one Krishna uncle took her forcibly on his lap to his room, closed the door and started inserting his penis inside her anus. The minor daughter of the informant somehow fled away to her house after shrugging off the hold of the accused.

It was alleged that the informant scolded the accused and told about the entire incident to her husband. On the basis of the aforesaid written application, a case came to be registered under Section 376 of the IPC and Sections 8, 12 of the POCSO Act. After completion of the investigation, the Investigating Officer (I.O.) submitted a charge-sheet under Section 376 of the IPC and Sections 4, 6 of the POCSO Act. By the impugned judgment, the appellant accused was convicted for the offences under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and was sentenced to undergo 20 years S.I. for the offence under Section 6 of the POCSO Act and pay a fine of Rs 25,000.

Reasoning

On a perusal of the evidence of the mother and the father of the victim, the Bench noted that the prosecution version had been changed and it could be seen that initially only the allegation of rubbing of the penis was made but subsequently the prosecution witnesses had further improved upon the same and stated that there was abrasion both in the vagina as well as anus of the child victim.

“From the evidences which we have observed, hereinabove, it would be evident that the prosecution witnesses have tried to make out a case of penetrative sexual assault however, the medical evidence does not corroborate their version of the story as the doctor very specifically has pointed out that on pelvic examination, no injury on vaginal or labial region was found and only redness and swelling were found near the opening of the anus and, therefore, it cannot be said that penetrative sexual assault was committed upon the victim”, it stated.

The Bench found that the doctor, who had conducted the medical examination of the victim, had deposed that there was no mark of injury found on the person of the victim, and on pelvic examination, no injury on vaginal or labial region was found. “It has been specifically opined by the doctor that according to the above findings, opinion about attempt of rape cannot be given and lastly during her cross-examination the doctor has admitted that the redness and swelling may be caused by fall on hard surface”, it noted.

It was also noticed that the pants, which were seized by the I.O. said to be containing a blood stain were sent for FSL examination; however, the blood grouping did not elicit any conformity with regard to it being blood of the victim.

Holding that it would not be safe to convict the appellant believing the testimony of the victim girl, the Bench allowed the appeal and ordered the release of the appellant accused.

Cause Title: Jai Krishna Yadav v. The State of Bihar (Criminal Appeal (DB) No.205 of 2023)

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