‘Intent behind assault on minor sexual’: HC dismisses plea against conviction

The plea had contended that there was no external mark of injury around the body of the victim and the charges against the accused were not substantiated by evidence. In the case of assault on an 8-year-old boy, the Principal Magistrate, Juvenile Justice Board, Sonepat had convicted that accused in March 2021 under Section 377 of IPC and Section 10 of POCSO Act.

In the plea before HC, it was argued by the counsel that the victim had never deposed about being sodomised and has only stated that a ‘wrong act/bad act’ was done with him.

Also, it was said that since the medical examination is stated to have taken place on the same day and without any delay, absence of any external marks of injury or detection of semen on the body or clothes of victim rules out any possibility of the victim being subjected to forcible intercourse or having been sodomised.

The bench of Justice Vinod S Bhardwaj after hearing the matter held, “Any act that would involve touching the private parts/genitalia or primary/secondary sexual characteristics of a child with a sexual intent involving physical contact without penetration would amount to a sexual assault.”

Citing judgements of different High Courts, the bench further said, “It is evident that in order to attract Section 377, the act in question must have to do with flesh and sensuality and that the same must involve penetration other than penile-vaginal penetration. The contention of the petitioners is restricted only to one of the aspects of the scope of Section 377 i.e. sodomy…The suggestive interpretation of the petitioner that Section 377 IPC cannot be attracted but for occurrence of an eventuality where there is an anal penetration does not find support in the statute.”

Justice Bhardwaj added that, “Section 377 can be attracted even in a situation where the penetration happens to be on any other part of the body of a victim, the predominant intent in the commission of the act, however, has to be sexual. Hence, the argument of the petitioners that conviction is bad for want of any external mark of injury around the body of the victim is liable to be rejected as not being well founded. The judgments of courts below thus cannot be held to be perverse on the said count.”

Dismissing the plea challenging the conviction, the judge held: “Considering that the victim happens to be a child of only 8 years as on the date of occurrence, his dignity having been violated by sheer brute force, I am not inclined to accept the said submission as well and reject the same.”