Semen presence not needed to prove child sexual assault: Punjab HC

The Punjab and Haryana High Court on Saturday upheld a lower court’s verdict and convicted a man for raping a minor stating that the presence of semen is not necessary to prove that a sexual assault has been committed on a minor.

A Bench of Justice Ashok Kumar Verma and Ritu Bahri was hearing a plea filed by a Haryana man against the order passed by the Additional Sessions Judge, Faridabad, where he had been convicted of rape under section 376 of IPC and Section 4 of POCSO Act.

The man’s lawyer argued that the trial court gave no opportunity to cross-examine the victim and hence the testimony of the victim cannot be made the basis for convicting the appellant. He also added that as per the medical report no external injury was seen on the victim’s body.

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However, the court observed, “In cases of sexual assault against children, the first, and most important, piece of evidence, is always the statement of the victim…Evaluation of the evidence of child witnesses, especially where they are the victim, is always a tricky affair. Combating, and, at times, conflicting, considerations come into play in such cases. On the one hand, there exists a presumption that a child of tender years would not, ordinarily, lie. The applicability, or otherwise, of this presumption, would necessarily depend, to a large extent, on the age of the child….the court is also required to be alive to the fact that children are impressionable individuals, especially when they are younger in age, and are, therefore, more easily tutored. The possibility of a small child, whose cognitive and intellectual faculties are yet not fully developed, being compelled to testify in a particular manner, cannot be easily said”.

It added that the presumption is that every witness is eligible to be deposed unless the courts decide otherwise. Once a child witness is found competent and is reliable to narrate facts, their statement could be evidence for a conviction.

“We are not convinced with the arguments of the appellant that no mark of external injury was found on the victim and as per FSL report semen could not be detected and as such no offence under Section 4 of the POCSO Act is made out against the appellant. Merely semen could not be found, does not mean that offence under Section 4 of the POCSO Act has not been committed,” the bench held.

The bench said that child rape cases are of persevere lust for sex as even an innocent child is not spared in pursuit of sexual pleasure.

“Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection,” concluded the bench

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