Entry of penis into vagina not essential for penetrative sexual assault under POCSO: Kerala High Court

The Kerala High Court recently held that even the slightest physical contact with the victim's external genitalia would amount to penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). [Raveendran v. Deputy Superintendent of Police & anr].A division bench of Justices PB Suresh Kumar and Jobin Sebastian upheld the conviction of a man found guilty of sexually assaulting a 4-year-old girl. In doing so, it clarified the scope of Section 3 of the POCSO Act, stating that penetration was not limited to full vaginal penetration, but included penetration within the labia majora or vulva (external female genitalia)."In other words, 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 added..The appellant, a neighbour of the minor victim, was accused of repeatedly committing acts of rape and sexual assault on her at his residence in Kasargod. The crime came to light when the child complained of genital pain to her mother, who took her to a Community Health Centre. The attending doctor, suspecting sexual abuse, alerted the authorities, leading to the registration of a case.The accused was charged under Sections 376AB (punishment for rape of a girl under 12 years) of the Indian Penal Code (IPC), Sections 5(m) (aggravated penetrative sexual assault) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act, along with provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.The trial court in Kasargod, relying on the victim's testimony and medical evidence, found the accused guilty and sentenced him to life imprisonment along with a ₹25,000 fine..Challenging the conviction, the accused approached the Kerala High Court, arguing that the victim's testimony was unreliable and that there was no conclusive medical proof of penetration.He contended that the prosecution failed to establish penetration, which was an essential ingredient to prove rape under Section 376 IPC and even cited medical reports stating that the victim's hymen was intact..The Court, however, rejected this argument stating that the absence of hymenal rupture did not negate the offence of rape or penetrative sexual assault.It emphasised that penetration, as understood under Section 375 (rape) IPC (amended in 2013), was not limited to the full insertion of the male genital organ into the vagina but also included penetration in and around the external female genitalia.Further clarifying that although the definition of penetrative sexual assault in POCSO did not explicitly define 'vagina', the meaning assigned under IPC could be applied to suffice that even partial penetration could constitute as an offence of penetrative sexual assault.The Court, thus rejected the necessity of full penile vaginal entry to constitute an offence, asserting that a narrow interpretation of 'vagina' would defeat the purpose of POCSO, which aimed to protect children from all forms of sexual exploitation."Therefore, the slightest penetration into the labia majora would constitute rape, and penile vaginal entry namely the actual passing of the penis into the vagina is not essential to constitute rape. In short, we have no hesitation in holding that the offence of rape, as well as penetrative sexual assault, is clearly made out in this case," the Court observed.It also noted that the testimony of a victim in a sexual assault case did not necessarily require corroboration if it was found to be credible and reliable. The Court emphasised that there was no evidence of any animosity between the victim's family and the accused, which could suggest any false implications..While dismissing the appeal, the Court modified his life sentence to 25 years of rigorous imprisonment..Advocates TG Rajendran and TR Tarin appeared for the accused, while Public Prosecutor Bindu OV represented the State..[Read Judgment]