Criminal Revision No. 66 of 2016

16th August, 2016.

Petitioner Counsel: Mr. SURESH K. THAKUR
Respondent Counsel: Mr. PANKAJ NEGI, Ms. RAJVINDER SANDHU

JUDGMENT

Vivek Singh Thakur, J. :- Charge under Section 5 (m) and 5 (n) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act') has been framed by Special Judge, Kangra at Dharamshala vide order dated 30.12.2015 against petitioner for committing sexual assault with his less than 12 years old daughter. Hence present petition.

2. I have heard learned counsel for parties and also gone through summoned record of trial Court. Learned counsel for petitioner submitted that without admitting guilt of petitioner even if it is considered that there was any material available on record to frame charge against petitioner, charge could have been framed only for attempt to commit alleged offence. He referred opinion of Doctor given in MLC of victim Ex. P-4 stated as under:-

"I am of opinion that there is a finding suggestive of possibility of attempt of forceful sexual intercourse cannot be ruled out."

3. Learned counsel for petitioner submitted that ocular evidence was to be considered at final stage of trial whereas medical evidence suggesting that there was attempt of forcible sexual intercourse was to be considered at present at the time of framing of charge and therefore framing charge only under Sections 5 (m) and (n) read with Section 6 of the Act is not sustainable and the charge under Section 18 of the Act for attempt to commit offence under Sections 5 (m) and 5 (n) read with Section 6 of the Act was required to be framed.

4. Learned counsel for petitioner also submitted that semen was not detected in vaginal swabs and vaginal slides of victim and also in underwear, coronal and glans swabs and pubic hair of petitioner and on the basis of chemical analysis and examination conducted by him, Doctor had opined possibility of attempt of forceful sexual intercourse.

5. Learned counsel for respondent No.2 argued that of semen was detected in Pajami and underwear of victim and human blood was also detected in clothes (frock, Pajami and underwear), vaginal swab and slides of victim, coronal and glan slides and pubic hair of petitioner, therefore charge has rightly been framed against petitioner and there is no illegality or perversity in impugned order passed by learned Special Judge.

6. Learned Deputy Advocate General submitted that Section 6 of the Act provides punishment for 'aggregative penetrative sexual assault' whereas opinion referred by learned counsel for petitioner is that 'attempt of forcible sexual intercourse cannot be ruled out' and complete sexual intercourse is not necessary for charging petitioner under Sections 5(m) and 5 (n) of the Act punishable under Section 6 of the Act as the offence of 'sexual assault' has been made punishable.

7. Section 2(f) of the Act provides that 'penetrative sexual assault' has the same meaning as assigned to it in Section 3 of the Act. Section 3 states that a person is said to commit 'penetrative sexual assault' if 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. Section 5(m) states that 'penetrative sexual assault' on a child below twelve years of age will be 'aggravated penetrative sexual' assault. Further Section (n) provides that 'penetrative sexual assault' committed on a child by a relative of child being a guardian will be in the category of 'aggravated penetrative sexual assault'. Section 6 provides Punishment for 'aggravated penetrative sexual assault' committed on a child.

8. Victim in her statement recorded under Section 161 of the Code of Criminal Procedure placed before the learned Special Judge alongwith challan stated that in the intervening night between 19-20th March, 2015 during her sleep, she felt pain at her urinary organ and she cried. She felt hard object being inserted in her urinary organ and on her crying her mother woke up.

9. As per medical evidence blood group of victim was of Group 'A'. Blood of same Group was found on Pajami, underwear, vaginal swab of victim and underwear of petitioner. Blood was also detected on vaginal slides of victim, coronal, glans slides and pubic hair of petitioner.

10. On medical examination of victim observations of Doctor with regard to 'Vulva hymen, vagina, perineum and ervix in MLC of victim (Ex. P-4 to petitioner) were as under:-

Volva : Erythmatous tender.

Hymen : Erythmatous inflamed remarks seen.

Vagina : Inflamed Tenderness Perineum

11. At the time of consideration for farming charge, court has to consider entire material including ocular and medical evidence, placed before it. However, in my considered opinion, in present case even if medical and ocular evidence is ignored and only medical evidence considered then also there was sufficient material in MLC indicating that there was peniteration, may be to a small extent not amounting to complete sexual intercourse but definitely 'penetrative sexual assault' for purpose of the Act. As per Section 3 (a) peniteration to any extent is 'penetrative sexual assault'.

12. A certificate issued by Registrar Birth and Death Gram Panchayat Vindravan was also placed on record with challan. As per this certificate victim was daughter of petitioner and her date of birth was 14.11.2004 and thus her age was less than 12 years on day of incident. Therefore alleged offence fulfilled ingredients of Section 5 (m) and 5(n) of the Act. Section 18 of the Act is not attracted at all because there was sufficient ocular evidence corroborated by medical evidence that there was penetration.

13. Absence of semen in vaginal swabs and slides of victim and underwear, coronal glan slides and pubic hair of petitioner was not sufficient to negate evidence of 'penetrative sexual assault' by petitioner because offence under Sections 5(m) and 5 (n) was not to be treated as complete only on ejaculation in vagina. Slightest penetration for a shortest time was sufficient to bring the offence under the purview of committing 'penetrative sexual assault' on a child as defined in the Act.

14. In view of above discussion, I find no illegally, irregularity, perversity or infirmity in impugned order passed by learned Special Judge, Kangra at Dharamshala in framing charge against petitioner and as such no interference is warranted at this stage by this Court and petition is dismissed alongwith pending applications, if any.

15. Observations made in this judgment are for disposal of present petition and shall not be construed as expression of opinion on the merits of the case.

16. Records of the Court below alongwith copy of this Judgment be sent back immediately.

as under:-

1) Human blood was detected in exhibit -1a (frok, Muskan), exhibit-4a (Coronal and glans swabs Sanjay Kumar) and exhibit-8 (bed sheet), but the amount of blood was insufficient for blood grouping semen was not detected in the exhibits.

2) Human blood of group 'A' was detected in exhibit 1/b (Pajhami, Muskan) and exhibit 1c (underwear, Muskan). Human semen was detected in the exhibits.

3) Human blood of group 'A' was detected in exhibit 2a (Vaginal swabs, Muskan) exhibit 2c (Vaginal swabs Muskan) and exhibt-3 (underwear, Sanjay Kumar) Semen was not detected in the exhibits.

4) Blood was detected in exhibit 2b (vaginal slides, Muskan). Semen was not detected in the exhibits.

5) Blood was detected in traces in exhibit-4b (Coronal and glans slides, Sanjay Kumar) and exhibit-6 (Pubic hair, Sanjay Kumar), but was insufficient for further examination. Semen was not detected in the exhibits.

Petition dismissed.