Case Note & Summary
The appellant, Mahadeo @ Mahadya Uttam Gonde, was convicted by the Special Judge (POCSO), Chandrapur, for offences under Sections 4 and 10 of the POCSO Act and Section 377 IPC, and sentenced to rigorous imprisonment for 10 years. The victim, an 11-year-old boy, alleged that the appellant lured him and his friend Ayush to his field on the pretext of giving green grams, then overpowered the victim, removed his clothes, pressed his private parts, and inserted his penis into the victim's anus. The victim's friend Ayush escaped and later the victim narrated the incident to his mother, leading to a prompt FIR. The appellant's defence was false implication due to enmity with a local politician. The High Court, on appeal, examined the evidence. The victim (PW-2) and Ayush (PW-5) consistently testified about the incident up to the point of the appellant attempting to catch them and carrying the victim into the field. However, the medical evidence from PW-3, the Medical Officer, revealed no injuries on the victim's anus or body, and the doctor opined that penetration could not be confirmed. The medical examination of the appellant also showed no injuries. The court noted that the victim's testimony regarding penetration was not corroborated by medical evidence. The court held that while the incident of assault and attempt to commit sexual act was proved, the prosecution failed to prove actual penetration. Consequently, the court converted the conviction from penetrative sexual assault under Section 4 of POCSO Act to attempt to commit penetrative sexual assault under Section 18 read with Section 3 of POCSO Act, and set aside the conviction under Section 377 IPC. The appellant was sentenced to the period already undergone (about 2 years and 6 months) and fine was set aside.
Headnote
A) Criminal Law - Penetrative Sexual Assault - Section 3 POCSO Act - Proof of Penetration - The court examined whether the medical evidence and testimony of the victim proved penetration. The medical officer found no injury to the anus and opined that penetration could not be confirmed. The victim's testimony alone, without corroboration of penetration, was held insufficient to prove penetrative sexual assault. The court held that the evidence established only an attempt to commit penetrative sexual assault. (Paras 10-18) B) Criminal Law - Unnatural Offences - Section 377 IPC - Carnal Intercourse - The court held that the medical evidence did not support the allegation of carnal intercourse. The absence of injuries on the accused and the victim's anus, and the medical opinion that penetration could not be confirmed, led to the conclusion that the offence under Section 377 IPC was not proved. (Paras 10-18) C) Criminal Law - Appreciation of Evidence - Child Witness - Corroboration - The court held that while the testimony of the child victim is credible, in cases of penetrative sexual assault, medical evidence must corroborate the allegation of penetration. The court found that the medical evidence was inconsistent with the victim's version regarding penetration. (Paras 10-18)
Issue of Consideration
Whether the evidence on record is sufficient to prove the offence of penetrative sexual assault under Section 3 of the POCSO Act and carnal intercourse under Section 377 IPC, or whether the offence is only an attempt to commit sexual assault.
Final Decision
Appeal partly allowed. Conviction under Section 4 of POCSO Act and Section 377 IPC set aside. Appellant convicted under Section 18 read with Section 3 of POCSO Act for attempt to commit penetrative sexual assault. Sentence reduced to period already undergone (about 2 years 6 months). Fine set aside.
Law Points
- Penetrative sexual assault under Section 3 of POCSO Act requires proof of penetration
- Medical evidence must corroborate allegation of penetration
- Section 377 IPC requires proof of carnal intercourse
- Benefit of doubt when medical evidence inconsistent with prosecution case
