Meghalaya High Court: In a criminal appeal filed by the convict/appellant, convicted under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and sentenced to 15 years of rigorous imprisonment and a fine of Rs. 10,000/ , the division bench of Sanjib Banerjee, C.J., and W. Diengdoh J., has held that the lower Court was justified in arriving at the conclusion that it was established beyond reasonable doubt that the petitioner had sexually assaulted the minor survivor. Further, the appeal had no merit and no cause for interference with either the judgment of conviction or the consequent sentence that was awarded.
The facts of the case are that the child’s mother filed the First Information Report (‘FIR’) upon being informed about the incident by a 10-year-old witness. Further, when the minor was taken to the hospital by her mother, the medical examiner recorded in the report that the minor claimed that the appellant’s penis had penetrated her vagina and there was ejaculation on her private parts. Moreover, the medical report of the medical examiner found a “laceration, red, tender on touch on the right side”.
The Court observed that there were differences in the narration of facts by the appellant about his interaction with the victim. Further, the appellant has also failed to explain his presence at the place of occurrence, and the contradictory statements made by him during his examination under Section 313 of the Criminal Procedural Code, 1973 (‘Code’) establish his guilt in the instance.
The Court observed that penetrative sexual assault, for the purposes of the relevant provision, does not require deep or complete penetration and the slightest amount of penetration would suffice for the purpose. The medical examination report of the survivor revealed penetration, even though it was only at the level of introitus, the hymen of the survivor was found to be intact, and the factum of penetration was medically established.
The Court was of the view that there was no basis in the appellant’s assertion that the survivor was examined long after the alleged incident, as she was examined well within 24 hours of the alleged incident. Even though the appellant ought to have been medically examined to ascertain whether he could maintain an erection, the lack thereof would not make the case against the appellant to be thrown out on this ground.
The Court held that the Trial Court has viewed the incident on oral evidence that was presented at the trial and considering the statements recorded under Section 164 of the Code, thus, the Trial Court was justified in arriving at the conclusion and awarding the sentence to the appellant.
[Swill Lhuid v. State of Meghalaya, 2022 SCC OnLine Megh 557, decided on 13-10-2022]
Advocates who appeared in this case :
For Appellant: Advocate H.R. Nath,
Advocate R. Biswa
For Respondent: Advocate General R. Gurung