Non-examination of a non-verbal victim is not fatal to conviction if corroborative medical evidence exists.

The appellant/accused was convicted by the Trial Court under Section 377 IPC and Section 6 r/w Section 5 of the POCSO Act, 2012, for the sodomy of a 7-year-old boy suffering from cerebral palsy

On 21.08.2017, the victim’s mother (PW1) returned home to find her jhuggi locked from inside by the accused

Upon opening, the victim was found crying with anal injuries and his diaper removed

The accused claimed he was falsely implicated due to a financial dispute involving ₹70,000

The victim was never examined in court due to his severe physical and mental disability (73.3% locomotor disability/cerebral palsy)

The appellant challenged the conviction primarily on the grounds of non-examination of the victim and lack of DNA evidence

1. Whether the non-examination of a victim with severe speech and cognitive disabilities is fatal to the prosecution’s case under the POCSO Act and IPC.

2. Whether an MLC report and the testimony of a doctor identifying the preparer's handwriting are admissible under Section 32 of the Evidence Act when the original medical examiners are unavailable.

3. Whether the absence of seminal stains or biological fluids in the FSL report negates the charge of penetrative sexual assault.

The court relied on Section 119 of the Indian Evidence Act regarding the testimony of witnesses unable to communicate verbally

It applied Section 32(2) of the Evidence Act, which allows statements made in the ordinary course of professional duty (such as MLCs) to be admissible when the maker's attendance cannot be procured without unreasonable delay

The court cited State of Karnataka v. N.G. Naik to establish that conviction can be recorded based on circumstantial and medical evidence even if the victim is unavailable

Furthermore, it affirmed that under the POCSO Act and Section 377 IPC, penetration to any extent constitutes the offence, and ejaculation is not a prerequisite for conviction

The Court reasoned that the victim’s non-examination was justified as PW2, PW5, and PW11 (Medical Expert) established that the child’s cerebral palsy rendered him unable to speak or make proper gestures

The Court rejected the defense's argument for a special educator, noting that the victim had no formal training in sign language, making such an appointment futile

Regarding the MLC, the Court held it admissible under Section 32(2) and Section 47 of the Evidence Act because PW12 identified the signatures/handwriting of the doctors who had since left the hospital and could not be traced

The Court found the circumstantial evidence—the accused being alone in a locked room with the disabled child and the immediate discovery of fresh anal tears—sufficient to bridge the gap left by the FSL report's lack of DNA, as semen is not required to prove penetration

The Court held that the prosecution successfully proved the "last seen together" theory in a confined space and that medical evidence corroborating physical trauma is sufficient for conviction in POCSO cases involving victims with speech and mental impairments

The absence of biological fluids in the FSL report does not override credible ocular and medical testimony