The Meghalaya High Court, while deciding an appeal against conviction in a rape case under the Protection of Children from Sexual Offences (POCSO) Act, 2012, has held that penetrative sexual assault does not require deep or complete penetration and even the slightest amount of penetration would suffice to constitute rape of a child under the Act.

The Division Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed that the medical examination report of the child-victim revealed penetration and even though the hymen was intact so as to indicate that the extent of penetration may not have been to any great length the factum of penetration was medically established.

The Court rejected the argument of the 60-year-old – Appellant that the examination was conducted on the survivor long after the time of the alleged incident, particularly since the young witness claimed the incident to have taken place at or after 5 pm on March 2, 2018, and the survivor was examined at or about 4:30 pm on March 3, 2018, and thus observed-

"It is true that the appellant ought to have been medically examined to ascertain whether he was capable of maintaining an erection, given the age attributed to the appellant at the time of the commission of the offence. However, merely because the investigating agency may not have been alert would not otherwise require the case made out against the appellant to be thrown out on such score."

In this case, the Appellant was convicted under Section 5(m) of the POCSO Act, 2012 and sentenced to 15 years of rigorous imprisonment and a fine of Rs. 10,000/-.

The FIR was lodged by the mother of the victim-child who claimed in her complaint that the Appellant had raped her daughter who was seven-and-a-half-year-old at the time of the incident.

The mother recorded in her statement given to the medical examiner that a 10-year-old neighbor informed the mother of the survivor that he saw the appellant was with the girl in the jungle near her residence. Upon being so informed, the mother reportedly asked her daughter and was told that the man "sexually assaulted her after luring her with Rs.10/- and bought 'Rum Pum'.

The medical examiner recorded in the report that the survivor had claimed that her vagina had been penetrated by the Appellant's penis and that there was ejaculation on her private parts.

The medical report showed that though the hymen was intact but the laceration and tenderness was said to be as a result of penetrative activity within between 12 and 24 hours prior to the examination. The opinion expressed by the medical examiner in the report was that there were signs suggestive of recent vaginal penetration.

Advocate H.R. Nath along with Advocate R. Biswa appeared for the Appellants while GA R. Gurung appeared for the Respondents before the Court.

The Court noted, "Penetrative sexual assault, for the purpose of the relevant provision, does not require deep or complete penetration. The slightest amount of penetration would suffice for the purpose. The medical examination report revealed penetration, albeit at the level of the introitus. Even though the hymen may have been intact so as to indicate that the extent of penetration may not have been to any great length, the factum of penetration was medically established."

The Bench thus held that the Trial Court was justified in arriving at the conclusion that it was established beyond reasonable doubt that the Appellant had sexually assaulted the minor survivor.

Accordingly, the Court dismissed the appeal and upheld the conviction of the Appellant.

Cause Title – Swill Lhuid v. State of Meghalaya & Ors.

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