Material omission of the alleged penetrative act rendered first-time trial testimony insufficient to sustain penetrative sexual assault convictions.

The appellant, Binu, was the accused in S.C. No. 12 of 2023 before the Fast Track Special Court, Kodungallur.

The prosecution alleged that, between 12 June 2022 and 16 October 2022, the accused, a neighbour of the ten-year-old victim, enticed her with sweets and sexually assaulted her in the backyard of his residence. The alleged acts included touching her breast and vagina and applying his mouth to her vagina after removing her underwear, allegedly on multiple occasions.

The Special Court convicted the accused under Sections 376(2)(n), 354A(1)(i) read with 354A(2) of the IPC, and Sections 3(d) read with 4(2), 5(l), 5(m) read with 6(1), 7 read with 8, 9(l), 9(m) read with 10, and 11(iv) read with 12 of the POCSO Act. It imposed, inter alia, concurrent sentences of twenty years’ rigorous imprisonment for the offences under Sections 5(l) and 5(m) read with Section 6(1) of the POCSO Act.

In appeal, the accused challenged the reliability of the victim’s testimony, relying on omissions and improvements between her first information statement, statement under Section 164 of the CrPC, medical history, and deposition before the court. In particular, the allegation that the accused had applied his mouth to the victim’s vagina was absent from the earlier statements.

1. Whether the prosecution proved the offence of repeated rape under Section 376(2)(n) of the IPC?

2. Whether the prosecution proved penetrative sexual assault under Section 3(d) read with Section 4(2) of the POCSO Act?

3. Whether the prosecution proved aggravated penetrative sexual assault under Sections 5(l) and 5(m) read with Section 6(1) of the POCSO Act?

4. Whether the evidence established sexual assault under Section 7 read with Section 8 of the POCSO Act?

5. Whether the evidence established aggravated sexual assault under Sections 9(l) and 9(m) read with Section 10 of the POCSO Act?

6. Whether the evidence established sexual harassment under Section 11(iv) read with Section 12 of the POCSO Act and sexual harassment under Section 354A(1)(i) read with Section 354A(2) of the IPC?

7. Whether the conviction and sentence imposed by the Special Court required appellate interference?

The Court applied Section 376(2)(n) of the IPC, concerning repeated rape; Section 354A(1)(i) read with Section 354A(2) of the IPC, concerning physical contact or advances involving unwelcome and explicit sexual overtures; and Sections 3(d), 4(2), 5(l), 5(m), 6(1), 7, 8, 9(l), 9(m), 10, 11(iv), and 12 of the POCSO Act.

Section 3(d) treats the application of the accused’s mouth to a child’s vagina as penetrative sexual assault; Section 5(l) aggravates the offence where penetrative sexual assault is committed more than once or repeatedly; and Section 5(m) applies where the child is below twelve years of age.

The Court reiterated that penetration need not be complete and that penetration to even a slight degree may satisfy the statutory requirement; however, the prosecution must still prove the relevant penetrative act through reliable evidence.

A material omission in the victim’s earlier statements concerning a vital ingredient of the offence may substantially impair the evidentiary value of a subsequent improved version.

The victim, examined as PW1, was ten years old at the time of the occurrence, and her age was established through the birth register.

The Court accepted that her evidence supported allegations of the accused catching her breast and vagina and that the surrounding evidence of her mother and brother corroborated the occurrence to the extent within their knowledge. However, the specific allegation that the accused had applied his mouth to the victim’s vagina—which was essential to establish penetrative and aggravated penetrative sexual assault—was absent from both the first information statement and the Section 164 statement. PW1 admitted that she had not stated that fact to the police or the Magistrate.

The prosecution relied on the evidence of PW9, the doctor, who stated that the victim had disclosed the penetrative act during medical examination. The Court, however, found that the medical certificate recorded the victim’s mother, rather than the victim, as the person who narrated the history. Consequently, the Court declined to treat the medical evidence as reliable corroboration of the later version regarding penetration.

Because the omission concerned the central ingredient of penetrative sexual assault, the Court discarded that portion of the testimony and held that the offences under Section 376(2)(n) of the IPC and Sections 3(d), 4(2), 5(l), and 5(m) read with Section 6(1) of the POCSO Act were not proved beyond reasonable doubt.

The remaining evidence, however, was sufficient to establish that the accused had caught hold of the child’s breast and vagina. Those acts constituted sexual assault under Section 7 read with Section 8 of the POCSO Act, aggravated sexual assault under Sections 9(l) and 9(m) read with Section 10, and sexual harassment under Section 11(iv) read with Section 12. The Court also upheld the conviction under Section 354A(1)(i) read with Section 354A(2) of the IPC.

The convictions and sentences under Section 376(2)(n) of the IPC and Sections 3(d) read with 4(2), 5(l), and 5(m) read with 6(1) of the POCSO Act were set aside for failure to prove the alleged penetrative act through reliable evidence.

The convictions under Sections 7 read with 8, 9(l) and 9(m) read with 10, and 11(iv) read with 12 of the POCSO Act, along with Section 354A(1)(i) read with Section 354A(2) of the IPC, were confirmed.

The sentences were modified to: five years’ rigorous imprisonment and a fine of ₹25,000 each under Sections 9(l) and 9(m) read with Section 10; two years’ rigorous imprisonment and a fine of ₹10,000 under Section 11(iv) read with Section 12; and three years’ rigorous imprisonment and a fine of ₹15,000 under Section 7 read with Section 8. The substantive sentences were directed to run concurrently, while default sentences were to run separately.