Penetration is not sine qua non to constitute sexual assault under Section 8 POCSO Act

Calcutta High Court: A Single Judge Bench comprising of Shivakant Prasad, J. dismissed a criminal appeal filed by the appellant against the order of trial court whereby he was convicted under Section 8 of Protection of Children from Sexual Offences Act, 2012.

As per the prosecution case, the appellant took the victim girl with him on the pretext of giving music tuition. On the way, he dragged her to a bush by the side of the main road and committed sexual assault. He was caught by local people and handed over to the police. In her statement, the victim deposed in unequivocal terms that she was taken to the bush; her face was gagged; underpants were removed, and the appellant pushed a finger into her vagina. Consequently, the trial court convicted the appellant under Section 8. The appellant appealed against the order of trial court contending that the statement of the victim was not reliable, as, in case of pushing a finger into the vagina, there would have been a vaginal injury, and no such fact was brought out by the medical evidence.

The High Court repelled the contention of the appellant. It was observed that the medical evidence does not itself prove the prosecution case, it is only used for corroborating the charge. The victim girl was the first eye-witness who had clearly stated about pushing of a finger into her vagina, but not about penetration. Statement of the victim was in consonance with probabilities and consistent with other witnesses. Pushing of the finger may not cause vaginal injury. Further, the guilt of the appellant was proved as penetration was not necessary, and mere touching of the vagina would constitute sexual assault, sufficient to prove the appellant guilty under Section 8 of the Act. Accordingly, the impugned order of the trial court was upheld and the appeal was dismissed. [Niranjan Pramanik v. State of W.B.,2018 SCC OnLine Cal 4377, decided on 03-07-2018]

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