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Minor X vs State & Anr. on 4 July, 2019

$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.07.2019
+ CRL.REV.P. 23/2019 Crl.M.A.353/2019 (stay)
MINOR X ….. Petitioner
versus

STATE ANR. ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Zishaan Iskandari with Mr. Ali Chaudhary,
Advocates.

For the Respondent : Ms. Meenakshi Dahiya, APP for the State.
SI Imran Khan, PS Mundka
Mr. Tej Pratap, Advocate for respondent No.2.
CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

CRL.REV.P. 23/2019 Crl.M.A.353/2019 (stay)

1. Petitioner (child victim) impugns order dated 20.11.2018,
whereby, the Trial Court has framed charges against the
accused/respondent No.2 under Section 10 of the Protection of
Children from Sexual Offences (POCSO) Act 2012 .

2. Learned counsel for the petitioner submits that in view of the
observations in the medical report of the petitioner, it was evident that
there was penetrative sexual assault, as specified in Section 3 POCSO,

Crl.Rev.P.. 23/2019 Page 1 of 8
thereby attracting Section 6 POCSO. He submits that the Trial Court
has erred in ignoring the medical opinion rendered in the MLC.

3. Learned counsel for the respondent, per contra, submits that
there is no material to substantiate that any penetrative sexual assault
had taken place. He further submits that the MLC does not indicate
that there was any fresh injury mark and as such, the Trial Court had
rightly not framed a charge under Section 6 POCSO.

4. Subject FIR was registered on the complaint of the mother of
the victim. The victim is aged 3 ½ years. It is alleged in the FIR that
the victim was on the terrace taking a bath in the rain. Respondent
No.2 accused, who is a neighbour, was also taking a bath on his
terrace. He is alleged to have called the victim and was allegedly
giving her a bath. When the complainant was taking the child victim
down the staircase, she informed the mother that the accused had
removed her undergarments and had touched her inappropriately.

5. The complainant thereafter informed her husband and there was
a fight between the husband and the accused. The police were called
and subject FIR was registered. MLC of the victim was conducted on
the next day in the morning. With regard to the local examination of
the genital parts, the opinion of the doctors as recorded in the MLC is
as under:-

Crl.Rev.P.. 23/2019 Page 2 of 8
B. External Genitalia

I. Labia Majora: Any swelling, tears, No injury
edematous, bruises or abrasion:

II. Labia Minora: Scratch, bruising No injury marks
fingernail marks tear, infection:

III. Fourchette: Bleeding, tear: Redness Over Posterior
fourchette

IV. Vulva injury, injury bleeding, No injury
discharge:

V. Perineum: No injury, bleeding

C. Hymen-Intact/Torn: If Torn-Site, No fresh Injury
Nature, Extent of injury:

Injury-fresh or old / oedema /
congestion / tenderness

D. Vagina Cervix (any Bleeding / tear /
discharge / oedema / tenderness)
Speculum examination (if possible):

P/V examination (only if medically Not indicated.
indicated).

6. The child victim in her statement recorded under Section 164
Cr.P.C. has inter alia stated as under:-

“Q. Do you like bathing in the rain?

A. Yes

Q. Was there anyone when you bathed in the rain?

Crl.Rev.P.. 23/2019 Page 3 of 8
A. Raju

Q. How did you bathe?

A. Raju was doing like this (the child rubs her vagina
continuously with her hand)

Q. Then what happened?

A. I asked him to leave.

Q. Then did you tell this incident to anyone?

A. To my mother.

Q. Did you tell this to anyone else also?

A. To my dad. On the terrace.”

7. The allegations against the respondent No.2, as are appearing
from the FIR as also her statement under Section 164 Cr.P.C., are that
accused respondent No.2 bathed the child victim in the rain. The child
victim by her actions has informed the Court that he was rubbing her
vagina continuously with her hand. The MLC of the child further
indicates that there was redness over the posterior fourchette.

8. In the Textbook of Obstetrics by D.C. Dutta, Chapter 1:
Anatomy of Female Reproductive Organ, the external genitalia of a
female reproductive organ is inter alia described as under:-

“LABIA MAJORA: The vulva is bounded on each side by
the elevation of skin and subcutaneous tissue which form
the labia majora. They are continuous where they join
medially to from the posterior commissure in front of the
anus. The skin on the outer convex surface is pigmented
and covered with hair follicle. The thin skin on the inner

Crl.Rev.P.. 23/2019 Page 4 of 8
surface has sebaceous glands but no hair follicle. The
labia majora are covered with squamous epithelium and
contain sweat glands. Beneath the skin, there is dense
connective tissue and adipose tissue. The adipose tissue
is richly supplied with venous plexus which may produce
hematoma, if injured during childbirth. The labia
majora are homologous to the scrotum in the male. The
round ligament terminates as its upper border.

LABIA MINORA: They are two thin folds of skin, devoid
of fat, on either side just within the labia majora. Except
in the parous women, they are exposed only when the
labia majora are separated. Anteriorly, they divide to
enclose the clitoris and unite with each other in front and
behind the clitons to form the prepuce and frenulum
respectively. The lower portion of the labia minora fuses
across the midline to form a fold of skin known as
fourchette. It is usually lacerated during childbirth.
Between the fourchette and the vaginal orifice is the
fossa navicularis. The labia minora to contain no hair
follicles or sweat glands. The folds contain connective
tissues, numerous sebaceous glands, erectile muscle
fibres and numerous vessels and nerve endings. The labia
minora are homologous to the penile urethra and part of
the skin of penis in males.”

9. As per the said commentary, the fourchette is an internal
portion which is between the Labia Majora and Labia Minora. The
MLC found redness over the posterior fourchette which prima facie
indicates that there was some form of penetration.

10. The Supreme Court in the judgment SectionWahid Khan vs. State of
Madhya Pradesh: (2010) 2 SCC 9 has held that even slightest
penetration is sufficient to make out an offence of rape and depth of

Crl.Rev.P.. 23/2019 Page 5 of 8
penetration is immaterial. Relying on the opinion expressed by Modi
in Medical Jurisprudence and Toxicology (Twenty Second Edition) at
page 495, the Supreme Court further held that partial penetration of
the penis within the Labia majora or the vulva or pudenda with or
without emission of semen or even an attempt at penetration is quite
sufficient for the purpose of the law.

11. The Supreme Court in Wahid Khan (supra) has clearly laid
down that even partial penetration is sufficient to constitute an offence
of rape under Section 376 IPC. This would also satisfy the
requirements of Section 3 POCSO, which reads as under:-

“3. Penetrative sexual assault.-

A person is said to commit “penetrative sexual assault”
if-

a. he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or

b. he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or

c. he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus or
any part of body of the child or makes the child to do so
with him or any other person; or

Crl.Rev.P.. 23/2019 Page 6 of 8
d. he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person.”

12. In terms of Section 3 POCSO, more particularly, Section 3(b)
POCSO, if an accused, to any extent, inserts any object or part of
body, it would constitute penetrative sexual assault.

13. In view of the above, the contention of the learned counsel for
the respondent No.2 that the victim in her statement Section 164
Cr.P.C. had not stated that her undergarments were removed, to my
mind, would make no difference inasmuch as the requirements of
Section 3(b) POCSO is insertion of any object. So insertion of any
part of the body or any object even from above the undergarments
would prima facie still constitute an offence under Section 3(b)
POCSO and amount to penetrative sexual assault.

14. The issue as to whether the undergarments were removed or not
and whether there was in fact a penetrative sexual assault are issues
which would be subject matters of trial. At this stage, the Court has to
only prima facie form an opinion on the material collected during
investigation and to ascertain as to whether grave suspicion arises
against the accused of having committed the alleged offence.

15. From the material on record, particularly, the MLC, I am prima
facie of the view that the grave suspicion arises against the respondent
No.2 of having committed the offence under Section 6 POCSO.

Crl.Rev.P.. 23/2019 Page 7 of 8

16. Perusal of the impugned order dated 20.11.2018 shows that the
Trial court had acted on the fact that the accused had conceded to
framing of charge under Section 10 POCSO and had not applied its
mind to the chargesheet as also to the material collected by the
prosecution prima facie indicating towards the commission of the
offence under Section 3 read with Section 6 POCSO. Accordingly, a
charge under section 6 POCSO is liable to be framed against the
Respondent No. 2.

17. In view of the above, I am of the view that the impugned order
dated 20.11.2018, framing a charge against respondent No.2 only
under Section 10 POCSO, cannot be sustained. Accordingly, is set
aside.

18. Matter is remitted to the Trial Court to frame appropriate charge
in terms of the observations contained herein.

19. It is informed that the matter is already listed before the Trial
Court on 10.07.2019. The Trial Court shall appropriately frame a
charge in terms of the directions contained herein on the said date.

20. Petition is, accordingly, allowed in the above terms.

21. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
JULY 04, 2019/st

Crl.Rev.P.. 23/2019 Page 8 of 8

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