### Absence of Definitive Proof of Penetration Reduces Charge to Attempted Aggravated Penetrative Sexual Assault under POCSO Act

In brief

The question

Whether the failure to specify the exact room/floor in the Charge and the lack of a scaled site plan prejudiced the appellant's right to a fair trial

The court held

The Court partly allowed the appeal.

It also directed

It set aside the conviction under Section 6 of the POCSO Act and Section 376AB of the IPC

Instead, it held the appellant guilty of "Attempt to commit Aggravated Penetrative Sexual Assault" under Section 18 of the POCSO Act

The sentence was reduced from 30 years to 10 years of rigorous imprisonment

The conviction and sentence under Section 342 IPC (wrongful confinement) and the orders regarding fine and victim compensation were upheld

01Facts

The appellant was convicted by the Trial Court on 27.09.2021 under Sections 376AB and 342 of the IPC, and Section 6 of the POCSO Act, for the alleged aggravated penetrative sexual assault of a six-year-old girl

pp. 1-2

The prosecution alleged that on 24.12.2018, the appellant lured the victim into a room, bolted it, and committed the offence

pp. 3, 12-13

The victim’s mother (PW-3) refused an internal medical examination to avoid further trauma to the child

p. 15

The appellant challenged the conviction on grounds of a defective charge, lack of medical corroboration, and inconsistencies in the victim's statement regarding the act of penetration

pp. 4-7

02Issues

i.Whether the failure to specify the exact room/floor in the Charge and the lack of a scaled site plan prejudiced the appellant's right to a fair trial

pp. 4, 19-20

ii.Whether an adverse inference should be drawn against the prosecution due to the refusal of a gynaecological medical examination of the victim

p. 5, 21

iii.Whether the evidence established "penetration" beyond reasonable doubt to sustain a conviction for "Aggravated Penetrative Sexual Assault" under Section 6 of the POCSO Act

pp. 7, 29-32

03Law Applied

The court primarily applied Section 215 of the Cr.P.C., which stipulates that errors in a charge do not vitiate a trial unless they mislead the accused or cause a failure of justice

p. 20

It invoked Sections 29 and 30 of the POCSO Act, which mandate a legal presumption of guilt and culpable mental state once foundational facts are established

pp. 18-19

The court relied on *B.C. Deva v. State of Karnataka* regarding conviction based on the cogent oral testimony of a victim without medical corroboration

p. 22

and *Balveer Singh v. State of M.P.* concerning the reliability and preliminary examination of child witnesses

pp. 23-27

Section 18 of the POCSO Act was applied for punishment for attempting to commit an offence

p. 30

Provisions in the judgment · 18 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 342

Code of Criminal Procedure, 1973 Section 164 Section 294 Section 313 Section 212 Section 215 Section 311

Protection of Children from Sexual Offences Act, 2012 11 provisions

Section 6 Section 5 Section 7 Section 8 Section 9 Section 10 Section 29 Section 30 Section 33 Section 42 Section 18

04Reasoning

The Court found that the omission of the exact location in the Charge did not prejudice the appellant as he was well aware of the allegations and sequence of events

p. 20

Regarding the medical examination, the Court held that the mother’s refusal was a natural reaction to protect the child from trauma and did not invalidate the victim's consistent oral testimony

p. 21

However, on the core issue of penetration, the Court noted significant ambiguities: in her Section 164 statement, the victim stated the appellant "placed" his penis "on" her vagina, and only during the trial did she allege he "put" it "in"

pp. 30-31

Given these variations and the lack of medical evidence confirming penetration, the Court determined that the prosecution failed to prove "penetration" beyond reasonable doubt

p. 32

Nevertheless, the intent and preparation were evident, shifting the offence from completed assault to an "attempt"

p. 32