Case Note & Summary
The case involves an appeal against the conviction of the accused for the rape of a 10-year-old victim under Section 376(2)(f)(i) IPC and aggravated penetrative sexual assault under Section 6 of the POCSO Act. The incident occurred on 23.05.2015 when the victim was playing near a cattle shed; the informant (mother) saw the accused running away and the victim had mud on her head. The victim later told her mother that the accused made her lie down, removed her clothes, and lay on her, causing pain. The FIR was lodged promptly at 12:00 noon the same day. The medical examination revealed no injuries, intact hymen, no bleeding, but slight swelling over vulva and vagina; the doctor opined no sexual intercourse occurred but possibility of rubbing and attempt of sexual assault. The trial court convicted the accused for rape and aggravated penetrative sexual assault. On appeal, the High Court re-appreciated the evidence and found that the victim's testimony did not allege penetration, and the medical evidence clearly negated penetration. The court held that the essential ingredient of penetration for rape under Section 375 IPC and for aggravated penetrative sexual assault under Section 5 of POCSO was missing. However, the evidence established an attempt to commit rape and sexual assault under Section 7 of POCSO. The court altered the conviction to Section 376 read with Section 511 IPC and Section 8 of POCSO, reducing the sentence to the period already undergone (about 5 years) and modifying the fine.
Headnote
A) Criminal Law - Rape - Penetration - Essential ingredient - Section 375 IPC - For conviction under Section 376 IPC, penetration is a sine qua non; medical evidence showing intact hymen, no injuries, and no bleeding negates penetration; victim's testimony not alleging penetration is insufficient to prove rape (Paras 12-14). B) Criminal Law - Attempt to Rape - Section 376 read with Section 511 IPC - When medical evidence indicates only swelling and possibility of rubbing, and victim states accused lay on her causing burning sensation, the offence is attempt to rape, not complete rape (Paras 12-14). C) Protection of Children from Sexual Offences Act, 2012 - Aggravated Penetrative Sexual Assault - Section 5(m)(n) and Section 6 - Penetration is required; absence of penetration leads to conviction under Section 7/8 for sexual assault instead (Paras 12-14). D) Evidence Act, 1872 - Medical Evidence - Corroboration - Medical opinion that no sexual intercourse occurred and hymen intact is crucial to determine nature of offence; court must consider medical evidence alongside oral testimony (Paras 12-14). E) Criminal Procedure Code, 1973 - Appeal - Conviction - Appellate court can re-appreciate evidence and alter conviction to lesser offence if evidence does not support higher charge (Paras 13-14).
Issue of Consideration
Whether the evidence on record proves the offence of rape under Section 376(2)(f)(i) IPC and aggravated penetrative sexual assault under Section 6 of the POCSO Act, or only an attempt to commit rape under Section 376 read with Section 511 IPC and sexual assault under Section 8 of the POCSO Act.
Final Decision
Appeal partly allowed. Conviction under Section 376(2)(f)(i) IPC and Section 6 POCSO Act set aside. Accused convicted under Section 376 read with Section 511 IPC and Section 8 POCSO Act. Sentence reduced to period already undergone (about 5 years) and fine modified to Rs.10,000/- under IPC and Rs.5,000/- under POCSO, with default sentences.
Law Points
- Penetration is essential for rape under Section 375 IPC
- Medical evidence of intact hymen and no injury negates penetration
- Victim's testimony must be corroborated by medical evidence for penetration
- Prompt FIR is a crucial factor
- Enmity defence must be proved by accused
- Age of victim as child under POCSO Act is determined by birth certificate
