The Court said even if there is no penetration, the offence of aggravated penetrative sexual assault under Section 6 will be attracted and the offence cannot be said to be that of mere sexual assault under Section 7.
The Meghalaya High Court recently determined that touching a minor’s vagina with a penis constitutes the offense of ‘aggravated penetrative sexual assault’ under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) [Thoura Darnei v. State of Meghalaya].
A division bench, including Chief Justice S Vaidyanathan and Justice W Diengdoh, stated that even in the absence of penetration, the act still qualifies as aggravated penetrative sexual assault under Section 6. Therefore, it cannot be considered merely sexual assault under Section 7.
The accused argued that because there was no penetration, the offense should be classified only as sexual assault under Section 7 of the POCSO Act.
“By referring to Section 7 of the POCSO Act, 2012, an attempt has been made on the side of the appellant that there was no penetration into her vagina and the accused had only touched her private part with his penis and therefore, the accused can at the most be punished only under Section 7 of the POCSO Act, 2012. If this interpretation is accepted, it will give a wrong signal to others that the private part of a female can be touched with penis and only insertion in the vagina is impermissible that will alone amount to commission of offence, which is not the intent of the provisions of the POCSO Act, 2012,” the Court said.
In its July 8 judgment, the Court clarified that the accused cannot claim the defense of sexual assault under Section 7 of the POCSO Act by arguing there was no penetration.
The Court ruled that even an attempt to penetrate the victim’s private part is sufficient to qualify as aggravated penetrative sexual assault.
Thus, the Court upheld the trial court’s decision, which convicted the accused of aggravated penetrative sexual assault and sentenced him to 10 years of rigorous imprisonment.
In this case, the accused-appellant was convicted of raping a 4-year-old girl.
According to the medical report, there was no trace of semen, and the hymen was intact. However, the report did find a pubic hair of the appellant.
The Court stated that the accused’s conviction could be based solely on the credible testimony of the victim.
Based on this testimony, the High Court convicted the accused of raping the minor victim, even though the medical report did not conclusively establish his guilt.
“In a tender age, there is no possibility for a child to have an idea about a sexual assault and according to the child, a physical assault like hitting or pinching is a matter of concern. In the instant case, going by the description given by the victim child about the incident and carefully considering the evidence of P. Ws.2 & 7 and the medical and forensic science laboratory reports marked as Ex.Ps.2 & 5, we are convinced that the victim child was subjected to penetrative sexual assault. The victim child was four years old at the time of incident and hence, the offence of aggressive penetrative sexual assault is clearly established under Section 5(m) of the POCSO Act, which is punishable under Section 6 of the POCSO Act, 2012,” the Court observed while upholding the conviction order of trial court.