Punjab and Haryana High Court: Vinod S. Bhardwaj, J. contemplated the revision petition filed by the accused/ children in conflict with the law, challenging the dismissal of appeal by Additional District and Sessions Judge along with the order of conviction and sentence passed by the Juvenile Justice Board, for the commission of offence punishable under Section 377 of Penal Code, 1860 and Section 10 Protection of Children from Sexual Offences Act, 2012.
Facts to the extent necessary are that son of the complainant who was 8 years old at the time of the incident was sexually assaulted by the petitioners, when he had gone to the primary school, it was further stated that the petitioners committed sodomy and unnatural act of carnal intercourse with the victim.
Petitioner pointed out that prosecution was unable to establish the occurrence of the alleged event in the nature of carnal intercourse against the order of nature. Further, the argument was based on the testimony of the medical officer who had concluded that no external injuries and marks were found on the victim. Hence, according to the petitioners, the order of conviction by the Board was perverse and no case under Section 377 IPC can be made out.
It was further argued that the victim had never deposed that he was sodomised and only stated that ‘wrong/bad act’ was committed by the petitioners. Hence, the testimony of the child witness was doubtful. It was the case of the petitioners that self serving testimony of a child witness which was uncorroborated, cannot be accepted as the child was susceptible of being swayed by what others tell.
According to the petitioners, conviction under Section 10 POCSO Act was unsustainable as the necessary ingredients of ‘aggravated sexual assault’ were not made out. It was argued that in the absence of any medical evidence to corroborate penetration, the provision of Sections 3 and Section 4 POCSO Act would not be attracted in as much as the allegations were not supported by corroborative medical evidence.
Controverting the arguments by the petitioners the State was of the view that testimony of the child witness cannot be outrightly discarded. The victim/child witness understood the questions and was mature enough to depose rationally. Testimony of the victim where he stated that the petitioners had committed “Wrong Act/Bad Act” should be understood from the ordinary and general understanding of the said phrase from the point of view of a child and it would not be appropriate to apply the yardsticks of a fully grown adult to assess the gravity of the offence and to seek specific and detailed narration of the occurrence to ascertain the ingredients of the offence. It was also argued that, absence of the injury marks cannot be the basis to discard the testimony.
Reliance was placed on the judgment of Supreme Court in Ganesan v. State, (2020) 10 SCC 573 to point out that when the child witness/victim was mature, trustworthy and reliable, and has been thoroughly and fully cross-examined, the conviction can be based on sole evidence of such victim in the case of sexual assault.
Analysis and Decision:
(i) Whether offence of ‘aggravated sexual assault’ committed by the petitioners. Whether the conviction justified under various provision of POCSO.
Held: The Court clarified that aggravated sexual assault is a distinct offence as compared to penetrative sexual assault. It was held, “A conjoint reading of the aforesaid provisions fairly shows that penetration is not sine qua non for attracting the penalty of sexual assault. Any act that would involve touching the private parts/genitalia or primary/secondary sexual characteristics of a child with a sexual intent involving physical contact without penetration would amount to a sexual assault.”
(ii) Whether the testimony of child witness is unreliable for the want of corroboration through medical evidences in case of non-penetrative sexual assault.
Held: While answering in negative the Court relied on the statement made by the victim and observed, “the said witness has been subjected to cross-examination by the defence but the said witness has reiterated having been subjected to Wrong Act/Bad Act by the petitioners and denied all suggestions of false implication. He has also given a detailed description of the circumstances that preceded the occurrence and also the subsequent developments. Reliability and admissibility of the statement of the said witness cannot be discredited merely for want of corroboration.”
(iii) Whether offence under Section 377 IPC is attracted, in absence of medical records confirming penetration.
Held: Explanation to Section 377 IPC cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse. The Court observed that, “Section 377 cannot be restricted by use of the word “Penetrative intercourse” when the same has not been specified in the statutory provision. The use of phrase “carnal intercourse” as against “penetrative intercourse” or “sexual intercourse” is a conscious act of the legislature reflecting the clear intent of the legislature to engraft an offence under Section 377 to be separate and different that the offence contemplated against “sexual intercourse”. The omission of the legislature is neither negligent nor an outcome of over-sight.”
It was also held, that the legislature was not ignorant while drafting the words ‘carnal intercourse’ there was an object and purpose behind the said words. The Court observed that, “from a perusal of the aforesaid pronouncements as well as the understanding of the word ‘Carnal intercourse’, it is evident that in order to attract Section 377, the Act in question must have to do with flesh and sensuality and that the same must involve penetration other than penilevaginal penetration.”
(iv) Whether the external injury marks required, to make an offence and to corroborate the testimony of the witness.
The Court relying on the judgment of the Supreme Court in Vijay v. State of M.P., (2010) 8 SCC 191, held that the absence of injury mark is inconsequential. It was observed that, “where the victim is a minor or has surrendered to the inevitable due to sheer timidity, there may be a possibility of the victim not suffering any injury.” There can be chances that victim had not violently resisted the petitioners. Thus, the conviction passed by the courts below was upheld.
[ Ankit v. State of Haryana, 2022 SCC OnLine P&H 588, decided on 02-03-2022]
Mr. U.K. Agnihotri, Advocate for the petitioners.
Mr. Kanwar Sanjiv Kumar, Assistant Advocate General, for the State.