2025 Supreme(Online)(Mad) 68006

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr Justice N. SATHISH KUMAR
M.AJITH – Appellant
Versus
STATE REPRESENTED BY – Respondent
Crl.A.No.549 of 2019 | Special S.C.No.51 of 2018

For penetrative sexual assault under POCSO, insertion of any object or body part causing tenderness suffices; SC/ST Act requires proof of caste-based motive, not mere caste difference.

Headnote:(A) Indian Penal Code, 1860 - Section 366 - Protection of Children from Sexual Offences Act, 2012 - Sections 3 and 6 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2)(v) - Criminal Procedure Code, 1973 - Section 374(2) - Aggravated penetrative sexual assault on a mentally retarded child aged 11 years - Conviction by trial Court - Appeal against conviction and sentence.

(B) Penetrative sexual assault - Definition under Section 3 of POCSO Act - Insertion of any object or a part of the body, not being the penis, into the vagina, urethra or anus of a child constitutes penetrative sexual assault - Medical evidence showing tenderness on labia majora and scratch marks sufficient to establish penetration - No requirement of direct evidence of penile penetration. (Para 12)

(C) SC/ST (Prevention of Atrocities) Act - Offence under Section 3(2)(v) requires proof that the offence was committed on the ground of caste - Mere fact that victim belongs to Scheduled Caste and accused to another caste is not enough - Prosecution must establish that the accused knew the victim’s caste and acted on that basis. (Para 12)

(D) Sentencing - Amendment by Act 25 of 2019 effective from 16.08.2019 - For offences committed prior to amendment, punishment for aggravated penetrative sexual assault under Section 6 is imprisonment of not less than 10 years which may extend to life - Life sentence imposed by trial Court modified to 10 years rigorous imprisonment as the occurrence took place before the amendment and the penetration was only attempted causing tenderness. (Para 13)

Facts of the case:
The victim, an 11-year-old girl with 70% mental retardation, was left with her grandfather (PW4) while her mother (PW1) went to work. On 20.07.2017, the accused took the child to a nearby sugarcane field. Two witnesses (PW2 and PW3) heard the child’s cries, found her undressed, and caught the accused red-handed. The child identified the accused. Medical examination (PW7) revealed torn clothes, scratch marks on forearm, and tenderness on labia majora. The trial Court convicted the accused under Section 366 IPC, Section 6 POCSO Act, and Section 3(2)(v) SC/ST Act, sentencing him to life imprisonment. The accused appealed.

Findings of Court:
The High Court upheld the conviction under Section 366 IPC and Section 6 POCSO Act, holding that the medical evidence of tenderness on labia majora, along with the eyewitness account of the child being found undressed with the accused present, established aggravated penetrative sexual assault. However, the conviction under Section 3(2)(v) SC/ST Act was set aside as there was no evidence that the accused knew the victim’s caste or that the offence was motivated by caste animus. The life sentence under POCSO was modified to 10 years rigorous imprisonment because the offence occurred before the 2019 amendment and the penetration was not fully completed. Sentences to run concurrently.

Issues: 1. Whether the evidence established penetrative sexual assault under Section 3 of POCSO Act? (Para 12) 2. Whether the offence under Section 3(2)(v) of SC/ST Act was made out? (Para 12) 3. Whether the sentence of life imprisonment was appropriate for an offence committed before the 2019 amendment? (Para 13)

Ratio Decidendi: The court ruled that for penetrative sexual assault under POCSO, insertion of any object or body part causing tenderness is sufficient; direct evidence of penile penetration is not required. The SC/ST Act offence requires proof of caste-based motive, not mere difference in caste. Sentencing must be based on the law prevailing at the time of the offence, and life imprisonment is not warranted where the penetration was incomplete and the occurrence predates the amendment increasing the minimum sentence. Result : Appeal allowed in part. Conviction under Section 366 IPC (5 years) and Section 6 POCSO Act (modified to 10 years rigorous imprisonment) upheld. Conviction under Section 3(2)(v) SC/ST Act set aside. Sentences to run concurrently. Fine confirmed.

JUDGMENT

(By N.Sathish Kumar, J.)

Challenging the judgment of conviction and sentence, dated 21.12.2018 in Special S.C.No.51 of 2018 passed by the Sessions Judge, Mahila Court, Cuddalore, the appellant / accused has filed the present criminal appeal.

2. The accused was convicted and sentenced by the trial Court as follows:

3. Brief Facts of the Prosecution case are as follows:

3(i) the victim, aged 11 years, is a mentally retarded child and daughter of PW1. PW1, who was working as a coolie, used to leave the child with her father (PW4). On 20.07.2017, PW1 as usual went to coolie work leaving the victim child with her father. At about 03.00p.m, when the child was playing in front of the house, the accused took the child to the nearby sugar cane field. PWs 2 and 3, on hearing the sound of the child, rushed to the spot and found the child, who is mentally retarded, undressed and the accused has concealed himself in the sugar cane field. PWs 2 and 3 caught hold of the accused and brought the accused and child and they informed the occurrence to PW1, the mother of the child. PW1 also rushed to the spot and the child has identified the accused.

3(ii) Immediately, PW1 lodged the complaint (Ex.P2) before PW9, who has registered the First Information Report in Crime No.207 of 2017 under Sections 5(k) and 6 of POCSO Act under Ex.P6 and forwarded the FIR to the Court and took up the investigation. Thereafter, PW9 went to the place of occurrence and prepared Observation Mahazar (Ex.P3) and Rough Sketch (Ex.P7) and examined the witnesses and recorded the statement and also sent the child to the hospital. PW7, the Medical Officer attached to the Government Hospital, Cuddalore examined the child, the child complained of pain in both thighs and her dresses were torn. According to psychiatrist, the child has 70% mental disability. The Medical Officer also found scratch marks on the forearm and arm. Though there were no external injuries on genitalia and no seminal stains found on the cloths, tenderness is noted by the Medical Officer on labia majora and issued Ex.P4 in this regard. PW8 (Dr.Kanagavel), the Medical Officer attached to Government Hospital examined the accused and conducted potency test and issued Ex.P5. PW10 (Tmt.Jansirani), who was working as Personal Assistant to District Supply Officer in the Office of the District Collector, Cuddalore, issued the Community Certificate under Ex.P10 to the victim and PW11, the Revenue Tahsildar, issued Community Certificate to the accused stating that he belongs to Most Backward Community. PW12 (Sub-Inspector of Police) recorded further statement of the victim and finally arrested the accused, completed the investigation and laid the final report.

4. In order to bring on the guilt of the accused, the prosecution has examined as many as 13 witnesses and exhibited 13 documents and 4 material objects.

5. The trial Court, after appreciation of evidence, found the accused guilty of offences under Section 366 IPC, Section 6 of POCSO Act, 2012 read with Section 3(2)(v) of the SC/ST Act, convicted the accused and sentenced him as above. The trial Court mainly framed charges for offence under Section 366 of IPC for taking the child to the sugar cane field from the guardian, Section 6 of POCSO Act for committing aggravated penetrative sexual assault and Section 3(2)(v) of SC/ST Act as the victim child belongs to Schedule Caste and the accused belongs to Most Backward Caste, the offence committed by the accused has become an offence against a member of the schedule caste. Challenging the said judgment, the accused has filed the instant appeal.

6. It is the contention of the learned counsel for the appellant that the entire case of the prosecution is highly doubtful and the charge under Section 6 of POCSO Act has not been made out as there is no penetrative sexual assault on the victim even as per the evidence of PW7, the Medical officer attached to Government District Head Quarters Hospital, Cuddalore. It is his f

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