Back
Constitutes POCSO Assault: in
In a significant ruling reinforcing the protective framework of the (), the has held that even the slightest penetration—including touching the anus with the penis—constitutes , irrespective of whether the victim sustains any physical injury. A Division Bench of Justice Vivek Singh Thakur and Justice Ranjan Sharma dismissed the appeal of Shyam Veer, affirming his conviction for on a child below 12 years and upholding the of 20 years' .
The Lockdown Incident That Unfolded
The case dates back to , when the nation was under a strict COVID-19 lockdown. The victim, a child born on (thus under eight years at the time), was playing outside the appellant's quarters in a residential building in Shimla district. Both the victim's family and the appellant were tenants in the same building. A neighbour, PW-2 Smt. Anu, witnessed the appellant taking the child into his room. About 10 to 15 minutes later, the child emerged walking with difficulty, went behind bushes, and was seen cleaning his anus. The child later told his father that the appellant had made him lie on a bed, opened his pants, and inserted his private part into the child's anus, causing severe pain. The elder brother of the victim also disclosed that the appellant had previously attempted similar acts and threatened to kill him if he told anyone.
Medical Evidence and Forensic Corroboration
The victim was promptly medically examined. While the Medico-Legal Certificate (MLC) showed no external injuries, tears, or abrasions on the anus, the court noted that this did not negate penetration. Crucially, the forensic analysis detected human semen on the victim's pants, and DNA profiling confirmed that the semen matched the appellant's DNA profile. The court also noted that the child appeared frightened and had a staggering gait, consistent with the alleged assault.
Appellant's Contentions Rejected
The appellant's counsel argued that the conviction was based on conjectures, pointing to the absence of injuries and alleged enmity with one of the witnesses. The court scrutinised the plea of enmity and found it baseless—the suggestions put to PW-2 Anu in cross-examination contradicted the appellant's own statement under . Moreover, no enmity was alleged between the appellant and the victim's family or other independent neighbours like PW-6 Smt. Ashru Devi, who also testified against him. The court found the prosecution witnesses to be natural, consistent, and credible, with no time for conspiracy given the prompt reporting to the police.
Legal Clarification on Penetration
The core legal question was whether the absence of injury disproves . The court emphatically rejected this argument, drawing from the definition under . The judges observed that the provision covers "" and includes the slightest attempt to insert the penis into the anus. The court stated:
"Therefore, the act of the appellant by rubbing or touching his penis at the mouth of anus or slightest attempt to insert, amounts to even in absence of any injury in the anus, because provides that …"
Since the victim was below 12 years, the offence fell under as , attracting the minimum sentence of 20 years under .
Sentence Affirmed, Appeal Dismissed
The High Court held that the trial court had correctly imposed the minimum sentence, and no existed to warrant a lesser punishment. The appeal was dismissed in its entirety, and the judgment of conviction and order of sentence were affirmed. The court also directed that the record be sent back to the trial court.
This ruling sends a clear message that the 's protective scope is broad—medical evidence of injury is not a prerequisite for proving . The slightest penetration, supported by credible testimony and forensic evidence, is sufficient to sustain a conviction and attract the stringent penalties the law mandates.
