Touching Minor's Private Part With Penis Amounts To Aggravated Sexual Assault Under POCSO Act: Meghalaya HC

The accused, in this instance, was convicted for raping a four-year-old minor girl, despite medical evidence not showing semen or vaginal penetration.

A Division Bench of Chief Justice S Vaidyanathan and Justice W Diengdoh said, “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 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.”

Advocate S.D. Upadhaya (Legal Aid Counsel) appeared for the Appellant and Advocate S. Ain appeared for the Respondent.

The case involved the accused defending himself on the grounds that since there was no actual penetration of his penis into the victim's vagina, he should only be charged under Section 7 of the POCSO Act, which deals with sexual assault.

The High Court decisively rejected this defense, emphasizing that under Section 6 of the POCSO Act, aggravated penetrative sexual assault encompasses any touching of the vagina with the penis, even without actual penetration. The Court stressed that such an interpretation is crucial to prevent any misunderstanding that only complete penetration constitutes an offense under the Act.

The Court placed significant weight on the testimony of the victim and other evidence presented, ultimately upholding the conviction under Section 6 of the POCSO Act.

The Court highlighted that in cases involving very young children, the understanding and description of the assault by the child should be considered seriously, especially since such young victims may not articulate or understand the precise nature of sexual assault. The Court added, “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.”

Cause Title: Thoura Darnei v. State of Meghalaya, [2024:MLHC:604-DB]

Appearance:

Respondent: Advocates S. Ain, E.R. Chyne