POCSO Act | Penetration of the male genital organ within the labia majora or vulva, even without vaginal insertion, constitutes penetrative sexual assault under Section 3

Post By 24law
February 26, 2025

Pranav B Prem

The Kerala High Court has held that penetration of the male genital organ within the labia majora or vulva, even without vaginal insertion, constitutes penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Court ruled that such contact is sufficient to attract the offence, reinforcing that penile-vaginal entry is not a prerequisite under the law.

Key Observations by the Court

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Jobin Sebastian observed: "… penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well." The Court relied on the definition of 'vagina' under Section 375 of the Indian Penal Code (IPC), which includes the labia majora, and applied it to the POCSO Act by virtue of Section 2(2) of the POCSO Act, which allows for definitions from the IPC where not expressly defined in the Act.

Reasoning Behind the Judgment

The Court clarified that if the definition of 'vagina' as per IPC is not read into the POCSO Act, it could lead to an anomalous situation where penetrative sexual assault under POCSO would require penile-vaginal entry, whereas the offence of rape under IPC would not. The Court stated that such an interpretation would go against the objectives of the POCSO Act, which aims to comprehensively protect children from all forms of sexual abuse.

Case Background

The appellant in the case had been convicted by the Special POCSO Court under Section 376AB of IPC (rape of a girl under 12 years) and Section 5 (aggravated penetrative sexual assault) of the POCSO Act for repeatedly raping a 4.5-year-old neighbor. The appellant challenged the conviction, arguing that since there was no rupture of the victim’s hymen, the offence of rape and penetrative sexual assault was not made out. As per the medical records, there was redness on the labia majora of the victim and a reddish abrasion on both sides of the outer margin of the vaginal orifice. However, the Court categorically rejected the argument that hymenal rupture is a necessary condition for rape or penetrative sexual assault.

Reliability of Child Witnesses

The appellant also contended that conviction should not be based on the solitary testimony of a child witness. The Court rejected this argument, emphasizing that as per Section 118 of the Indian Evidence Act, a child witness is competent to depose if they can understand the questions and provide rational answers. The Bench observed: "Merely because children are prone to tutoring, their evidence cannot be discarded. The child victim in this case withstood the cross-examination, and her evidence was free from contradictions and omissions." The Court also noted that the victim’s testimony was corroborated by medical evidence and that there was no proof of any animosity between the victim’s family and the accused that could have led to false allegations.

Independent Witnesses Not Required in Sexual Offence Cases

The Court reaffirmed that sexual offences are generally committed in secrecy and that requiring corroboration by independent witnesses is impractical. It stated: "It is not prudent to look for corroboration of evidence by other independent witnesses in cases of sexual offences. However, courts should act with care and circumspection while relying on the sole testimony of a victim." The Court further stated that medical evidence, though not mandatory for conviction, can serve as corroboration.

Final Decision and Modification of Sentence

While upholding the conviction, the Court found that life imprisonment till the remainder of the convict’s natural life was excessive. It modified the sentence to rigorous imprisonment for 25 years and a fine of ₹25,000.