The Kerala High Court has ruled that the penetration of the male genital organ within the labia majora or vulva, even without full vaginal insertion, constitutes an offence under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act.
"Penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly, would make out the offence of penetrative sexual assault under the POCSO Act." – Kerala High Court
The ruling was delivered by a Division Bench comprising Justice P. B. Suresh Kumar and Justice Jobin Sebastian while hearing a criminal appeal (Crl.A No. 1469 of 2019) challenging a conviction under the POCSO Act and IPC.
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The Court referred to Section 375 of the Indian Penal Code (IPC), which clarifies that "vagina" includes the labia majora. By applying this definition to POCSO via Section 2(2) of the Act, the Court ensured consistency in legal interpretation.
Key Legal Points:
- Section 375 of IPC explicitly states that penetration into the labia majora constitutes rape.
- Section 3 of POCSO Act defines "penetrative sexual assault" similarly to IPC's definition of rape.
- Section 2(2) of POCSO Act allows for interpretation using IPC definitions where terms are undefined in POCSO.
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The Court reasoned that failing to include labia majora within the scope of POCSO would create an inconsistency where full penetration is not required for rape under IPC but would be required under POCSO, which contradicts the Act’s objective of protecting children.
case Background
The appeal was filed by a man convicted under Section 376AB of IPC and Section 5 of the POCSO Act for repeatedly sexually assaulting a 4.5-year-old girl in his neighborhood. The prosecution alleged that the accused penetrated the victim’s genitalia on multiple occasions.
The defense argued that:
- There was no hymenal rupture, implying lack of penetration.
- The conviction was based on the sole testimony of the child, which was unreliable.
The Court rejected these arguments, stating:
- "Mere absence of hymenal rupture does not absolve the accused of penetrative sexual assault."
- "A child witness is competent to testify if capable of understanding and answering questions rationally."
The accused contended that reliance on the child's sole testimony was unsafe. The Court, however, reaffirmed the legal stance that child witnesses are competent to testify under Section 118 of the Indian Evidence Act, provided they can comprehend and answer rationally.
"Children are prone to tutoring, but this does not warrant an outright rejection of their testimony. Each case must be assessed based on the witness's credibility."
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The Court also noted that the child’s testimony was:
- Consistent during cross-examination.
- Supported by medical evidence showing redness and abrasions on the victim’s genitals.
- Corroborated by other witnesses, including medical professionals and Childline members.
The Court observed that sexual offences are often committed in secrecy, making it impractical to demand independent witnesses.
"In cases of sexual assault, corroboration by independent witnesses is not mandatory. The sole testimony of the victim, if credible, is sufficient for conviction."
However, the Court emphasized that courts must exercise caution and evaluate testimonies in conjunction with medical and circumstantial evidence.
The trial court had sentenced the accused to life imprisonment for the remainder of his natural life. While upholding the conviction, the High Court modified the sentence to 25 years of rigorous imprisonment and a fine of ₹25,000.
"Considering the nature of the offence, life imprisonment for the remainder of natural life is excessive. A 25-year rigorous imprisonment term meets the ends of justice."
Counsel for the Appellants: Advocates T. G. Rajendran, T. R. Tarin
Counsel for the Respondents: Adv. Bindu O. V. (PP)
Case No: Crl.A 1469 of 2019
Case Title: x v The Deputy Superintendent of Police and Another
