Absence of Penetration and Spermatozoa Reclassifies Penetrative Sexual Assault as Sexual Assault under POCSO Act

The appellant was convicted by the Trial Court for offenses under Section 376(i) IPC and Sections 4, 8, and 12 of the POCSO Act

The prosecution alleged that on June 18, 2018, the appellant entered the victim's (8-year-old girl) house, pulled down her pants, rubbed his penis on her vagina, and committed "bad work"

The victim’s mother (PW-3) filed the report the next day

Medical examination showed no physical injuries or spermatozoa, though FSL reports detected semen on the victim's pants

The appellant challenged the conviction, arguing that the medical evidence contradicted the ocular testimony regarding penetration

1. Whether the available evidence, specifically the phrase "bad work" and the presence of semen on clothing, justifies a conviction for penetrative sexual assault under Section 4 of the POCSO Act

2. Whether the act of touching the victim's private parts with sexual intent constitutes sexual assault under Section 8 of the POCSO Act

Section 3 of the POCSO Act, which defines "penetrative sexual assault" as penetration of the penis or any object into the vagina "to any extent"

Section 7 defines "sexual assault" as touching the vagina or breasts with "sexual intent" without penetration

Sadashiv Ramrao Hadbe v. State of Maharashtra, which held that the absence of spermatozoa in a vaginal swab casts doubt on the version of intercourse

Attorney General for India v. Satish, emphasizing that "sexual intent" is the core ingredient of sexual assault, regardless of skin-to-skin contact

Wahid Khan v. State of Madhya Pradesh, noting that while the slightest penetration constitutes rape, it must be legally established

The court found that the medical evidence (PW-7) negated penetration, as there were no vaginal lacerations, perineal tears, or spermatozoa

The court reasoned that the victim’s use of the term "bad work" is a genus, whereas "penetrative sexual assault" is a specific species that requires corroboration of actual penetration under Section 29 of the POCSO Act

Mere presence of semen on the pants without medical evidence of vaginal entry is insufficient to prove penetration

However, the consistent testimony that the appellant pulled down the victim's pants and touched her private parts, coupled with the FSL report of semen on the clothing, sufficiently established "sexual intent" and "physical contact" for an offense of sexual assault under Section 7/8

The court further held that since the act was a sexual assault, the separate charge of sexual harassment under Section 12 was redundant

The appeal was partially allowed; noting that the appellant had already served approximately 7 years and 7 months in custody—exceeding the 5-year maximum sentence for Section 8—the court ordered his immediate release