The Sikkim High Court said, even a minor penetration without any obvious damage is sufficient to qualify as rape or serious sexual assault under Section 376AB of the IPC and Section 5 of the POCSO Act. Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan, sitting as a divisional bench, said: Penetration to any degree is sufficient to qualify as sexual assault under the POCSO Act and rape under the IPC. The victim’s assertion that the appellant had inserted his penis into her vagina is precise, pertinent, and unambiguous.
In this case, an appeal was brought against the Special Judge’s decision under the POCSO Act, which found the appellant guilty under sections 376AB of the IPC and 5(m) of the POCSO Act.
The appellant’s attorney cited the medical report, which showed just marks over the labia minora and did not record any exterior injuries, saying that this was insufficient evidence to accuse the accused of penetrative sexual assault. Furthermore, it was claimed that pivotal prosecution witnesses had become hostile.
The victim’s mother and father have also recognised the witness, thus the prosecution does not feel the need to contest the impugned decision.
The appellants’ attorney, BK Gupta, cited the victim’s medical report, in which there was no mention of any external injuries. He claimed that the report’s sole mention of labia minora scarring was insufficient to support charges of penetrative sexual assault. Additionally, he said that a crucial prosecution witness had become hostile, which had hurt the prosecution’s case.
Additional Public Prosecutor SK Chhetri argued that the impugned judgement could stand as is and that, in addition to interviewing the victim, the prosecution also questioned the victim’s mother and father, who all recognised the appellant.The victim was ruled to be under 12 years old by the special judge in his ruling. He also thought the victim’s testimony was solid and convincing. In keeping with her admission made in accordance with section 164 of the CrPC, she further described the incident and the manner in which the appellant had inserted his penis into her vagina.
Due to the prosecution’s ability to establish its case beyond a reasonable doubt, the current Court determined that the Special Judge’s finding was appropriate. The High Court declared that it was upholding the Special Judge’s judgement.
