The Delhi High Court recently comprising of a bench of Justice Mukta Gupta while upholding the conviction and sentence awarded to a man for raping a 5 year old minor victim in a POCSO case remarked that the penetration is sufficient in order to constitute an offence under Section 376 (rape) of IPC and Section 6 of the POCSO Act and that presence of the semen is not necessary. (Ram Nawal v. State)
Facts of the case
By this appeal, the appellant challenged the judgment convicting the appellant for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and the order on sentence directing the appellant to undergo rigorous imprisonment for a period of 10 years and to pay fine of ₹5,000/- in default whereof to undergo simple imprisonment for one month.
Contention of the Parties
Learned counsel for the appellant contended that at the time of alleged incident the victim was a 5 years old child of impressionable age and thus the appellant has been implicated by tutoring her by her parents who were inimical to the appellant. Even though as per the case of the prosecution, the MLC of the prosecutrix shows injury and tear on her vaginal area and bloodstains on her undergarment, however, there is nothing to connect the appellant with the alleged offence. No recoveries have been made from the appellant and even in the FSL report no semen has been detected which could have connected the appellant to the offence alleged. Further, it was the case of the prosecutrix that the appellant took her to his room and to corroborate the version no bed sheet etc. were recovered to show that the appellant was the one who was involved in the alleged offence. Further, no public witness was associated at the time of seizure and arrest and there is no other eye witness who supports the claim of the prosecutrix that it was the appellant who took her inside the room.
Courts Observation and Judgment
The bench taking note of the facts of the case remarked, "Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is not necessary that semen needs to be essentially present."
The bench taking note of the contention of the appellant noted, "Contention of the learned counsel for the appellant that no public witness was associated at the time of recovery deserves to be rejected for the reason no recovery was made at the instance of the appellant and the clothes of the victim were handed over by her parents to the Investigating Agency, which were duly seized and sealed and FSL report received. The explanation of the appellant in his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated, however, neither any defence evidence has been led nor anything elicited to show as to why the appellant has been falsely implicated."
The court disposing of the appeal remarked, "In view of the statement of the minor victim as also her MLC, this Court finds that the prosecution has proved beyond reasonable doubt that the appellant committed the offence punishable under Section 6 of the POCSO Act. The sentence of rigorous imprisonment for 10 years awarded to the appellant is the minimum sentence prescribed for the offence punishable under Section 6 of the POCSO Act. Thus, this Court finds no error in the impugned judgment of conviction and order on sentence. Appeal is dismissed."
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