IMPORTANT POINT
Penetrative sexual assault – Two finger test and its interpretation violates right of rape survivors to privacy, physical and mental integrity and dignity – Two finger test cannot be permitted to be continued – State Government directed to ban practice of two finger test on victims of sexual offences by Medical Professionals forthwith.

JUDGMENT

The accused who has been convicted for life sentence which would be till the end of the life time for the offences under Section 5(l) read with Section 6(1) of the Protection of Children from Sexual Offences Act, 2012 (for brevity, ‘‘POCSO Act’’) with a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for 3 months and 7 years rigorous imprisonment for an offence under Section 363 of IPC along with a fine of Rs.20,000/- in default to undergo simple imprisonment for 3 months, has come up with this appeal.

2. The case of the prosecution is as follows:—

The accused who was running a tailoring shop in Perambur Village, Viralimalai Taluk, Pudukkottai District, had befriended the victim girl aged about 16 years when she went for tailoring training for about two months. The accused had enticed the girl and had sexually abused her. When the accused attempted to talk to the victim girl over cell phone at odd hours, her mother deprecated the practice and thereafter stopped the girl from attending the tailoring classes. However, the accused on 05.12.2020 came near the house of the victim girl and enticed her to meet him near Sengulam. The victim girl had left the house under the pretext of getting some old clothes stitched at about 04.00 p.m. Since she did not return for a long time, the father of the victim girl/PW1 went in search of her and was not successful. He, therefore, lodged a complaint with the respondent/Police under Ex.P1 on 06.12.2020 at about 10.00 a.m. Thereafter, on the same day, the Police called him and asked him to come near the Mathur E.B office. When he went there, he found his daughter with the Police. The victim girl was taken for medical examination. Upon medical examination, it was found that the accused had penetrative sexual intercourse with the victim girl. PW10-Inspector of Police, on receipt of a complaint had enquired PW1 and other witnesses on the same day and recorded their statements. He had also arrested the accused who attempted to escape when he was on a routine vehicle check on Trichy-Mavur road. The confession made by the accused was recorded by him and on the basis of the confession, the two wheeler bearing registration No.TN-42-R-4966 used by the accused to take the victim girl was seized from the accused. He had also taken the minor girl for medical examination and recorded the statements of the Doctor and the Constable who took her for medial examination. upon request, Section 164 statement of the victim girl was recorded on 21.12.2020. The accused was medically examined on 23.12.2020 and the report of the Doctor was also taken. The statement of the Doctor who had examined the accused, was recorded on 04.01.2021. Upon completion of the investigation, he laid a charge sheet charging the accused for the offences stated supra.

3. The accused denied having committed the crime. In order to prove the guilt, the prosecution, before the trial Court, examined as many as 10 witnesses and marked Exs.P1 to P12. The motorcycle was marked as MO1 and the CD was marked as MO2. The accused did not adduce either oral or documentary evidence.

4. The learned Sessions Judge upon consideration of the evidence on record, concluded that the prosecution has proved the guilt of the accused. Taking note of the fact that the accused had repeated sexual intercourse with the victim girl, the trial Court found that the accused is guilty of the offence under Section 5(l) of the POCSO Act. The Court also found that the accused is guilty of kidnapping a minor girl and as such, he has committed an offence punishable under Section 363 of IPC. Upon such conclusion, the learned Sessions Judge convicted the accused for the offences and sentenced him to undergo imprisonment as stated supra.

5. We have heard Mr. S. Sivasubramanian, learned counsel appearing for the appellant and Mr. T. Senthil Kumar, learned Additional Public Prosecutor appearing for the prosecution.

6. Mr. S. Sivasubramanian, learned cou