Mere Presence Of Semen On Victim's Clothing Insufficient To Convict POCSO Accused Without Corroboration: Patna High Court
The Court held that the absence of medical evidence of penetration, coupled with a lack of clear ocular proof, cannot sustain a conviction for penetrative sexual assault, and the presumption under Section 29 POCSO cannot be invoked in such circumstances.
The Patna High Court has held that mere presence of semen on the clothing of a victim and use of the expression “bad work” in testimony cannot, by itself, lead to a presumption of penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences Act, 2012, in the absence of corroborative medical or ocular evidence.
The Court was hearing a criminal appeal challenging the conviction of the appellant by the Special Court under the IPC and provisions of the POCSO Act, including Section 4, where the Trial Court had inferred penetration based on the presence of semen on the victim’s clothing and oral testimony.
A Division Bench of Justice Bibek Chaudhuri and Justice Chandra Shekhar Jha observed, “merely on the presence of semen on the pant of the victim and on the basis of the ocular evidence that some 'bad work' was done, it cannot be presumed that penetrative sexual assault to some extent was committed upon her”.
We are of the view, the Bench added, “that word ‘bad work’ is a genus to which ‘penetrative sexual assault’ is an species as to constitute the offence specifically within the meaning of Section 3 of the POCSO Act, therefore, “bad work” does not authorise the Court to presume ‘penetrative sexual assault’ within the meaning of Section 29 of the POCSO Act, unless it is either corroborated with ocular or medical evidence”.
Advocates Praveen Kumar Agrawal and Santosh Kumar Singh appeared for the appellant, while Abhimanyu Sharma, APP, appeared for the State.
Background
The appeal arose from a judgment of conviction passed by the Special Court (POCSO), whereby the appellant had been convicted under Section 376 of the IPC and Sections 4, 8 and 12 of the POCSO Act.
The prosecution's case was based on the statement of the victim and supporting witnesses, along with medical and forensic evidence, including seizure of clothing and examination reports.
The Trial Court had relied upon the presence of semen detected on the seized clothing and the testimony indicating the commission of “bad work” to conclude that penetrative sexual assault had taken place.
Court’s Observation
The Court undertook a detailed analysis of the statutory framework under the POCSO Act, including Sections 3, 7 and 11, which define penetrative sexual assault, sexual assault and sexual harassment, respectively.
It examined the evidentiary record and noted that the medical evidence did not indicate any injury, laceration, or signs of penetration, and that no spermatozoa were found in the medical examination of the victim.
The Court observed that while the testimony referred to “bad work”, such expression is generic in nature and does not, by itself, establish the ingredients of penetrative sexual assault as defined under Section 3 of the POCSO Act.
It held that the Trial Court erred in drawing an inference of penetration merely based on the presence of semen on the clothing, without corroborative medical findings or specific ocular evidence establishing penetration.
The Court further analysed the scope of presumption under Section 29 of the POCSO Act and held that such presumption cannot be invoked in the absence of foundational facts establishing the offence.
It was observed that the evidence on record, including medical findings, did not support the inference of penetration and therefore the conviction under Section 4 of the POCSO Act could not be sustained.
At the same time, the Court noted that the testimony did establish physical contact with sexual intent, which falls within the ambit of “sexual assault” under Section 7 of the POCSO Act.
Conclusion
The Court held that the evidence on record did not establish the ingredients of penetrative sexual assault under Section 3 of the POCSO Act and that the Trial Court erred in drawing such an inference solely based on the presence of semen on the victim’s clothing and use of the expression “bad work”.
Accordingly, the Court set aside the conviction of the appellant under Section 376 of the IPC and Sections 4 and 12 of the POCSO Act, while upholding the conviction under Section 8 of the POCSO Act. Considering the period of custody already undergone, the Court directed the release of the appellant.
Cause Title: Md. Khurshid @ Md. Khurshid Rayeen v. State of Bihar