The Kerala High Court recently ruled that any minimal physical contact with a victim's external genitalia constitutes penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

A division bench of Justices PB Suresh Kumar and Jobin Sebastian upheld the conviction of a man found guilty of sexually assaulting a 4-year-old girl.

In doing so, the court clarified the scope of Section 3 of the POCSO Act, stating that penetration is not limited to full vaginal penetration but also includes penetration within the labia majora or vulva (external female genitalia).

"In other words, penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially, or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well," the bench added.

The appellant, a neighbour of the minor victim, was accused of repeatedly committing acts of rape and sexual assault on her at his residence in Kasargod.

The crime was uncovered when the child complained of genital pain to her mother, who took her to a Community Health Centre. Suspecting sexual abuse, the attending doctor alerted the authorities, leading to the registration of a case.

The accused was charged under Sections 376AB (punishment for rape of a girl under 12 years) of the Indian Penal Code (IPC), Sections 5(m) (aggravated penetrative sexual assault) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act, along with provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The trial court in Kasargod, based on the victim's testimony and medical evidence, convicted the accused and sentenced him to life imprisonment along with a fine of ₹25,000.

Challenging the conviction, the accused moved the Kerala High Court, claiming that the victim's testimony was unreliable and that there was no conclusive medical evidence of penetration.  

He argued that the prosecution had failed to prove penetration, a crucial element for establishing rape under Section 376 of the IPC, and pointed to medical reports indicating that the victim's hymen remained intact.

The Court, however, dismissed this argument, stating that the absence of hymenal rupture does not negate the offence of rape or penetrative sexual assault.

The Court emphasized that under Section 375 of the IPC (as amended in 2013), penetration is not limited to the full insertion of the male genital organ into the vagina but also includes penetration in and around the external female genitalia.

The Court further clarified that while the POCSO Act does not explicitly define 'vagina,' the meaning assigned under the IPC could be applied to establish that even partial penetration constitutes penetrative sexual assault.  

Rejecting the notion that full penile-vaginal penetration is required to constitute the offence, the Court asserted that a narrow interpretation of 'vagina' would undermine the purpose of POCSO, which is to protect children from all forms of sexual exploitation.

"Therefore, the slightest penetration into the labia majora would constitute rape, and penile vaginal entry namely the actual passing of the penis into the vagina is not essential to constitute rape. In short, we have no hesitation in holding that the offence of rape, as well as penetrative sexual assault, is clearly made out in this case," the Court observed.

The Court also observed that the testimony of a victim in a sexual assault case does not require corroboration if it is found to be credible and reliable. It further emphasized that there was no evidence of animosity between the victim's family and the accused that could indicate a false implication.

While dismissing the appeal, the Court reduced the life sentence to 25 years of rigorous imprisonment.

Advocates TG Rajendran and TR Tarin represented the accused, while Public Prosecutor Bindu OV appeared for the State.