Failure to prove penetration does not preclude conviction for aggravated sexual assault under POCSO.

The appellant was convicted by the Sessions Court for offences under Sections 376(2)(i) and (n), and 354-A(1)(i) of the IPC, and Sections 4, 6 and 8 of the POCSO Act.

The prosecution alleged that he repeatedly sexually assaulted PW2, his stepdaughter, and sexually assaulted PWs3 and 4, his younger daughters.

PW2 was about 13 at the relevant time; PWs3 and 4 were below 12.

The allegations came to light after the children spoke to their teacher, and a complaint was lodged on 13 February 2018.

The appellant challenged the conviction, contending that the children had been tutored and that the medical evidence did not support the allegations.

1. Whether the victims’ testimony, considered alongside the medical evidence, established that PW2 had been subjected to penetrative sexual assault.

2. Whether the evidence established sexual assault against PWs3 and 4, and whether the convictions and applicable POCSO provisions required alteration.

The Court considered Sections 376(2)(i) and (n), and 354-A(1)(i) of the IPC, together with Sections 4, 6, 8, 9(l), 9(m) and 10 of the POCSO Act.

It distinguished proof of penetrative sexual assault from proof of sexual assault: the evidence was insufficient to sustain the penetrative-assault convictions under Section 376 and Sections 4 and 6, but supported liability under Sections 9(l) and 9(m), punishable under Section 10, for repeated sexual assault and assault on a child below 12.

The Court cited no precedent.

The Court rejected the tutoring argument, relying on the victims’ evidence, their written statements, and the accounts of the persons to whom they had disclosed the abuse; their mother had not supported the prosecution.

As to PW2, the medical examination and FSL findings did not establish penetration, and the Court held that her testimony was not sufficiently corroborated to sustain the penetrative-sexual-assault conviction, notwithstanding the doctor’s explanation for the negative FSL result.

The evidence nevertheless established sexual assault against PW2, while the testimony of PWs3 and 4 established that the appellant touched their private parts and chests.

Because PWs3 and 4 were below 12, the Court held that the offences fell under Sections 9(l) and 9(m), punishable under Section 10, rather than Section 8.

The Court set aside the convictions under Section 376(2)(i) and (n) of the IPC and Sections 4, 6 and 8 of the POCSO Act, but confirmed the conviction under Section 354-A(1)(i) of the IPC.

It substituted a conviction under Sections 9(l) and 9(m), punishable under Section 10 of the POCSO Act, and sentenced the appellant to seven years’ rigorous imprisonment and a fine of ₹25,000, with one year’s simple imprisonment in default.

The fine was directed to be paid to PW2 as compensation; the trial court’s direction concerning consideration of compensation for PWs2–4 and the appellant’s entitlement to set-off were maintained.