In a significant judgment, Sikkim High Court recently noted that even a slight penetration without any visible injury marks is enough to constitute offence of rape and aggravated sexual assault under Section 376 AB of the Indian Penal Code as well as Section 5 of the Protection of Children against Sexual Offences Act.
The division bench comprising Justice Bhaskar Raj Pradhan and Justice Meenakshi Madan Rai noted, “Penetration to any extent is sufficient to constitute rape under IPC and penetrative sexual assault under the POCSO Act. The victim’s deposition is specific, consistent and clear that the appellant had inserted his penis into her vagina.”
The bench was hearing an appeal filed against the judgment given by the Special Judge under the POCSO Act wherein it has convicted appellants under IPC Section 376 AB and Section 5 of the POCSO Act.
Advocate B.K. Gupta, appearing for the petitioners, cited the medical report of the victim where no visible external injury was recorded. It was argued that the report only revealed marks over the labia minora, which is not sufficient to charge for penetrative sexual assault. He also stated that the vital prosecution witness has turned hostile which made their case weak.
On the other hand, Additional Public Prosecutor S.K. Chettri submitted that the judgment doesn’t need any interference. It was further added that besides the victim, the prosecution has also examined her parents too who have identified the appellant.
The Special judge has held that the victim was below the age of 12 years and has considered her testimony firm and clear. She had deposed about the whole incident which was consistent with her statement under Section 164 CrPC.
“The victim’s testimony is not only consistent but fairly detailed, describing the ordeal she went through. There is sufficient corroboration to the “victim” s testimony by the other prosecution witnesses as correctly appreciated by the learned Special Judge,” the bench noted.