Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Himachal Pradesh High Court: In an appeal challenging the conviction of an accused for aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Division Bench of Vivek Singh Thakur* and Ranjan Sharma, JJ., held that penetration of the penis “to any extent” into the anus of a child constitutes penetrative sexual assault under Section 3, POCSO Act, even in the absence of any injury. The Court further held that where such assault is committed upon a child below twelve years of age, it amounts to aggravated penetrative sexual assault under Section 5(m), punishable under Section 6, POCSO Act. Accordingly, the Court dismissed the appeal and affirmed the conviction and sentence awarded by the trial court.
Background and Factual Matrix
On 27 April 2020, during the nationwide COVID-19 lockdown, the child was playing in front of the quarter occupied by the appellant. At that time, a neighbour (PW 2), noticed the appellant taking the victim to his room. After about 10 to 15 minutes, the victim came out of the appellant’s room walking with difficulty. PW 2 further noticed the victim went towards the bushes and was seen cleaning his anus after putting off his pants. Upon being questioned by his father (PW 3), the victim disclosed that the appellant had taken him to his room, made him lie on a bed, opened his pants, and inserted his private part into the victim’s anus, causing severe pain and discomfort. The victim’s elder brother further stated that the appellant had previously attempted a similar act with him and had threatened to kill him if the incident was disclosed to anyone.
Thereafter, information regarding the incident was conveyed to the police telephonically. The police reached the spot, recorded the statements made by the PW 3 and registered the FIR.
During the investigation, both the victim and the appellant were medically examined and their medico-legal certificates (MLCs) were obtained. The investigating agency also collected blood samples, semen samples, pubic hair, undergarments of the appellant and the pants of the victim, which was subsequently taken to the State Forensic Science Laboratory for examination.
Upon completion of investigation, the trial court, finding a prima facie case against the accused, framed charges under Section 377, Penal Code, 1860 and Sections 3, 4 and 6, POCSO Act.
The Court, after appreciating the oral and documentary evidence on record, convicted the appellant under Section 6, POCSO Act and sentenced him to undergo rigorous imprisonment for twenty years along with a fine of ₹5000, and in default of payment of fine, to further undergo simple imprisonment for 6 months. The appellant was also convicted under Section 377, Penal Code, 1860 and sentenced to undergo rigorous imprisonment for ten years along with a fine of ₹3000, and in default of payment of fine, to further undergo simple imprisonment for 3 months. The substantive sentences were directed to run concurrently.
Aggrieved thereby, the appellant preferred the present appeal before the High Court, contending that the conviction was based on conjectures and surmises rather than reliable evidence. It was argued that the prosecution had failed to establish penetrative sexual assault, as no injury, tear, abrasion, or sign of penetration was found during the medical examination of the victim. The appellant further submitted that PW 2 was inimically disposed towards him on account of a monetary dispute and had falsely implicated him in the case. It was also contended that the prosecution witnesses had made inconsistent and contradictory statements and, therefore, the conviction including the sentence were unsustainable.
Law, Analysis and Decision
The Court examined the evidence on record and found that the incident occurred during the COVID-19 lockdown when the appellant, the victim, and the prosecution witnesses were residing in the same building. The Court observed that the medical examination of the victim and the appellant were conducted promptly, the victim’s statement was recorded under Section 164, Criminal Procedure Code, 1973 (CrPC) and the date of birth certificate of the victim was procured, proving that the victim was less than 8 years of age at the time of the incident. The Court further noted that during the cross-examination, positive suggestions had been put by the defence which indicated admission of the occurrence and other relevant facts.
The Court while referring to the plea of enmity between the appellant and PW 2, held that there was no material on record which indicated any enmity between them. The Court noted that the explanation given by the appellant were entirely divergent and irreconcilable and, therefore, the plea of false implication was not sustainable. The Court, while examining the case on merits, observed that the statements of all the witnesses reflected that they had deposed in a natural manner and that there was no time in between to deliberate or to commit a conspiracy to falsely implicate the appellant in the case.
The Court also relied upon the forensic evidence. It noted that the chemical analysis report detected human semen on the victim’s pants and on the appellant’s underwear. The DNA profiling report also established that the DNA profile obtained from the semen stain on the victim’s pants matched the DNA profile of the appellant. The Court held that the oral, circumstantial and medical evidence, duly corroborated the commission of the offence by the appellant.
The Court, while considering whether the offence amounted to aggravated penetrative sexual assault, examined the provisions of Sections 3, 4, 5 and 6, POCSO, Act. The Court referred to Section 3 of the Act and observed that penetration of the penis to any extent into the anus of a child amounts to penetrative sexual assault. Therefore, the act of the appellant by rubbing or touching his penis at the mouth of anus or slightest attempt to insert, amounts to penetrative sexual assault even in absence of any injury in the anus. The Court further observed that, in view of Section 5(m), POCSO Act, penetrative sexual assault committed upon a child below twelve years of age amounts to aggravated penetrative sexual assault. The Court, held, that since the victim in the present case was below twelve years of age, the trial court had rightly convicted the appellant under Section 6, POCSO Act wherein the minimum prescribed sentence is twenty years and there is no scope for reducing the same.
Accordingly, the Court dismissed the appeal and affirmed the judgment of conviction and order of sentence passed by the trial court.
[Shyam Veer v. State of H.P., 2026 SCC OnLine HP 5948, decided on 16-9-2026]
*Judgment authored by: Justice Vivek Singh Thakur
Advocates who appeared in this case:
For the Appellant: Mr. Jai Ram Sharma, Advocate
For the Respondent: Mr. Yashwardhan Chauhan, Senior Additional Advocate General
Buy Protection of Children from Sexual Offences Act, 2012 HERE
