The absence of injuries on a victim does not negate the occurrence of penetration in sexual assault cases, and a victim's testimony, supported by medical evidence, can sustain a conviction under POCSO.

JUDGMENT :

A. BADHARUDEEN, J.

1. The accused in S.C. No.190/2017 on the files of the Special Court for the trial of cases relating to atrocities and sexual violence towards women and children, Kozhikode, has filed this appeal, under Section 374 of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 11.02.2019. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Since the advocate who filed this appeal has relinquished the vakalath, Adv.Anna Linda Eaden, was appointed as the State Brief to argue the matter. Heard the learned State Brief for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

4. The prosecution alleges commission of offence punishable under Section 3 (a) read with 4 of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], by the accused. The allegation of the prosecution is that, when the victim, a minor girl aged 11 years, has been staying at the house of her mother's sister, during 2014 Onam holidays, she was subjected to penetrative sexual assault by the accused.

5. After framing charge for the offence punishable under Section 3 (a) read with 4 of the POCSO Act, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 15 were examined and Exts.P1 to P12 were marked on the side of the prosecution. DWs 1 and 2 were examined on the side of the accused.

6. On appreciation of evidence, the Special Court found that the accused was guilty for the offence under Section 3 (a) punishable under Section 4 of the POCSO Act. Accordingly, the accused was convicted for the said offence and sentenced as under:

“The accused is sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine to undergo rigorous imprisonment for 2(two) years for the offence u/s 3(a) r/w 4 Protection of Children from Sexual Offences Act. The fine amount of Rs.50,000/- if realised, shall be given to PW1, the victim girl as compensation u/s 357(1)(b) of Cr.P.C. Set off is allowed for the period he had undergone in jail.”

7. While assailing the verdict impugned, the learned State Brief would urge that, in this case, the learned Special Judge found commission of offence punishable under Section 3 (a) of the POCSO Act by the accused, even though the evidence of PW1, the victim, in nowhere would suggest anything as to penetrative sexual assault as her evidence is confined to feeling of pain on her vagina and the presence of the accused nearby her. It is also pointed out by the learned State Brief that, even though PW5, the Pediatrician, who examined the victim on 17.11.2014, Government General Hospital (Beach Hospital), Kozhikode, opined that as per the detailed examination with the help of gynecologist, the victim was found to have torn hymen and congested labia minora.

8. It is submitted by the learned State Brief further that, as per Ext.P4 certificate got marked through PW6, it was stated as ‘hymen intact’. But the Special Court failed to consider this aspect. Therefore, the conviction and sentence imposed upon the accused are liable to be interfered and set aside, for want of evidence to prove the ingredients for the offence alleged t