Hymen Rupture Or Vaginal Injury Not Essential Ingredient: Kerala High Court Upholds POCSO Conviction
The appeal before the Kerala High Court was filed by an accused challenging the conviction and sentence imposed by the Special Court for the trial of cases relating to atrocities and sexual violence towards women and children.
Justice A. Badharudeen, Kerala High Court
While confirming the conviction of a man booked in a POCSO case, the Kerala High Court has reiterated that hymen rupture or vaginal injury is not an essential ingredient to prove the offence of penetrative sexual assault.
The appeal before the High Court was filed by an accused challenging the conviction and sentence imposed by the Special Court for the trial of cases relating to atrocities and sexual violence towards women and children, Kozhikode.
The Single Bench of Justice A. Badharudeen held, “If at all the evidence of PW6 based on Ext.P4 suggesting that hymen intact is taken into consideration, it is the well settled law that, hymen rupture or vaginal injury is not an essential ingredient to prove the offence of penetrative sexual assault, since penetration would occur even without rupture/breakage of hymen. To put it otherwise, absence of injuries on vagina does not negate penetration and hymen may remain intact even after penetration. Otherwise, any act of manipulation on any part of the body of the child so as to cause penetration to the vagina itself would attract the offence under Section 3(a) of the POCSO Act. Here, the evidence of PW6 lack credence since she made such an opinion on the premise of examining PW1, through PW1 did not co-operate with the examination as certified by PW6 herself.”
Advocate M.R. Sasith represented the Appellant, while Advocate Vipin Narayanan represented the Respondent.
Factual Background
The prosecution alleged the commission of an offence punishable under Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) by the accused. The prosecution alleged that, when the victim, a minor girl aged 11 years, was staying at the house of her maternal aunt during the 2014 Onam holidays, she was subjected to penetrative sexual assault by the accused. The Special Court found the accused guilty of the offence under Section 3(a), punishable under Section 4 of the POCSO Act.
Reasoning
The Bench explained that Section 3(c) provides that, manipulating any part of the body of the child to cause penetration to the vagina, urethra, anus, or any part of body of the child is an act of penetrative sexual assault. On a perusal of the facts of the case, the Bench noted that the evidence of the victim indicated that, though she did not know what the specific overt act done by the accused, there was penetration of her vagina, which resulted in tearing of the hymen as deposed by the Paediatrician.
The Bench thus stated, “Thus, the overt act of the accused is nothing but an act manipulating part of the body of PW1, so as to cause penetration into the vagina of PW1, which resulted in tearing of vagina and congested labia minora; and the said overt act would squarely fall within the sweep of Section 3(a) of the POCSO Act.”
The Bench was of the view that the Special Court was right in finding that the accused committed the offence under Section 3(a), punishable under Section 4 of the POCSO Act. Therefore, as per the Bench, the conviction did not require any interference.
The Bench noted that the accused was involved in three POCSO Act offences, and he had yet to start the sentence imposed in the case. Considering that the Special Court imposed rigorous imprisonment for seven years for the offence, the Bench held that the reduction in sentence was also not possible. “Therefore, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail”, it held.
Cause Title: Noufal v. State Of Kerala (Neutral Citation: 2026:KER:17084)
Appearance
Appellant: Advocates M.R. Sasith, Anna Linda Eaden
Respondent: Advocate Vipin Narayanan