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Synopsis

The Kerala High Court has held that in a case of sexual assault, the prosecution case cannot be discarded even if there is an absence of medical evidence to prove the offence.

A Division bench comprising Justice  Raja Vijayaraghavan V. And Justice P. V. Balakrishnan, delivered the verdict while upholding the conviction of a man for raping a minor girl aged 15 years. The accused was charged under Sections 452 (house-trespassing with preparation for harm), 376(2)(f) (rape by relative or guardian) ,(n) (rape on woman under 16 years of age) &(i) (rape on woman incapable of giving consent) and 506(ii) (threat to cause death or grievous hurt) of the Indian Penal Code (IPC) and Sections 5(l)&(n) r/w Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, dealing with aggravated penetrative sexual assault.

The court observed: “Going by Section 375 IPC (definition of rape) and Section 3 of POCSO Act (definition of penetrative sexual assault), penetration to any extent is sufficient to constitute the offences and if so, in the present case even if the medical evidence… does not give a positive indication of sexual assault, the same is not a ground to discard the prosecution case.”

The prosecution alleged that the accused, a close relative of the victim, criminally trespassed into her house, took her to a shed nearby and committed aggravated penetrative sexual assault upon her on one occasion. The accused again violated the minor girl inside his house on another occasion after threatening to kill her. The victim did not reveal the incident immediately, however, at a later time she disclosed the assault to some ladies who visited her house. Thereafter, a case was registered against the accused.

The medical examination of the victim revealed no external injuries on her and her hymen was intact. The medical practitioner who conducted the examination, however, clarified that there can be penetration without rupture of hymen.

The accused was found guilty and convicted by the Special POCSO Court, Kalpetta on all charges. He was sentenced to five years rigorous imprisonment (RI) and a ₹10,000 fine under Section 452 IPC, life imprisonment for the remainder of his natural life with a ₹50,000 fine for each of the IPC Section 376(2) offences, and five years RI with a ₹10,000 fine under Section 506(ii) IPC. No separate sentence was imposed under the POCSO Act, and all substantive sentences were to run concurrently.

The accused/ appellant approached the High Court challenging the judgment of the trial court. It was argued that the medical evidence only supports the contention of the accused that he is not involved in the crime. It was further contended that the testimony of the victim was shaky and the trial court has, even without looking for corroboration, relied upon it and has convicted the accused. The accused opposed the trial court’s verdict for being highly excessive.

Opposing the plea, the prosecution contended that the absence of injuries on the private parts of the victim is not a ground to discard the prosecution and there is no requirement of complete penetration for attracting the offences alleged.

The court, considering the evidence and arguments presented by the parties, noted that “the definition of 'rape' and 'penetrative sexual assault' do not contemplate a full or complete insertion /penetration and even a slightest penetration is sufficient to constitute the offence.”

Reiterating the principle that conviction can be founded solely on the testimony of the victim without corroboration, if it inspires confidence, the court held: “we have no hesitation to find that there is a ring of truth in her testimony regarding the events and we find her testimony wholly reliable and can be acted upon even without corroboration.”

Conclusively, the High Court found the that the prosecution has proved the guilt of there accused beyond reasonable doubt.

The court partly allowed the appeal, confirming the conviction under IPC Sections 376(2)(f), (n), (i), 452, 506(ii) and POCSO Act Sections 5(l) & 5(n). However, the sentence under IPC Section 506(ii) was reduced to one year RI and a ₹10,000 fine, with two months simple imprisonment (SI) in default. Similarly, the sentence under IPC Section 452 was reduced to one year RI and a ₹10,000 fine, with two months SI in default.

 

Cause Title: XXXXX v State of Kerala [Crl.Appeal 572 of 2021]

Appearance: For the Accused/Appellant- Advocate Rajendran T.G; For the Respondents- Senior Public Prosecutor Neema T.V.