Meghalaya HC held that the slightest penetration shall constitute aggravated penetrative sexual assault in the case of POCSO Act cases.
On October 13, 2022, the division bench of the Meghalaya High Court, comprising Chief Justice Sanjib Banerjee and Justice W. Diengdoh J., dismissed the appeal and upheld the decision of the Trial Court to convict a 60-year-old man of sexually assaulting a minor in Meghalaya. The court dismissed the criminal appeal and subsequently held the convict liable under Section 5(m) of the Protection of Children from Sexual Offenses Act, 2012 (POCSO). He was sentenced to 15 years of rigorous imprisonment and a fine of Rs. 10,000, whose failure to pay shall result in an additional 3 months of simple imprisonment. The minor’s mother alleged that the convict lured her seven-and-a-half-year-old daughter with Rs. 10 and later took her to the jungle near her residence to rape her. In the present case, namely, Swill Lhuid vs. State of Meghalaya and Others, it was established beyond reasonable doubt that the appellant was guilty of committing the said offence since his narration of facts (oral evidence) was contradictory and he wasn’t able to justify his presence at the place of committing the crime, i.e., a jungle near the girl’s residence.
Furthermore, the medical examination of the minor survivor reiterated the fact that there was "laceration, red, tender on touch on the right side," although the hymen was found to be intact and penetration was only at the level of the introitus of the survivor. At the same time, the court observed that the extent of penetration (deep, complete, or slight) is immaterial for establishing any penetrative sexual assault. Thus, the medical report found the "factum of penetration" regardless of its extent in the present case. The appellant/convict challenged the lower court’s judgment on the ground that the medical examination of the minor was done after 24-hour from committing the alleged crime and even his medical examination to ascertain whether he could maintain an erection wasn’t conducted (given the old age of the appellant at the time of the commission of the offence). But the court rejected these contentions as the respondent was examined well within the 24-hour limit of the alleged incident. Furthermore, the minor’s claim that the appellant’s penis had penetrated her vagina and there was ejaculation on her private parts, was confirmed in the medical examination. Hence, considering all the facts of the case and the arguments advanced, the Meghalaya HC held that the slightest penetration shall constitute aggravated penetrative sexual assault in the case of POCSO Act cases.
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