Inserting Finger In The Vagina Of A Minor Girl Is Penetrative Sexual Assault U/s. 5(m) Of POCSO Act - SC

In this case, the accused took the victim girl away from the house. The accused took her deep into the bushes, disrobed her and removed his clothes as well and penetrated his finger in the vagina, due to which the victim girl felt pain and irritation in urination. While he was about to force himself upon her and commit the offence of rape he was caught red-handed. The people who had gathered around and caught the accused and handed him over to the police. After which, the mother of the victim girl filed a First Information Report for the offences punishable under Sections 376 read with 511 of IPC and Section 3/4 of the Protection of Children From Sexual Offences Act, 2012.

The Trial Court held the accused guilty for the offences punishable under Section 376(2)(i) of IPC and Section 6 of the POCSO Act, 2012. The Trial Court further sentenced the accused to undergo life imprisonment. The accused preferred an appeal before the Uttarakhand High Court which dismissed the said appeal, confirmed the conviction of the accused and the sentence of life imprisonment. Against the impugned judgment of the High Court, an appeal was preferred before the Supreme Court.

Counsel, Shri Saju Jacob, appeared on behalf of the accused-Appellant while Counsel, Shri Krishnam Mishara represented the State of Uttarakhand before the Apex Court.

The primary issue in this case was –

• Whether inserting finger in the vagina of a minor girl is penetrative sexual assault under Section 5(m) of the Protection of Children From Sexual Offences Act, 2012.

It was contended by the accused-Appellant that it was only an attempt of aggravated sexual assault. It was submitted that in absence of penetration and aggravated penetrative sexual assault, the appellant could not be convicted for the offences punishable under Section 5/6 of the POCSO Act, rather the case would fall under sexual assault punishable under Section 8 of the POCSO Act.

On the other hand, it was claimed by the State that this was a case of penetrative sexual assault as defined under Section 3(b) of the POCSO Act. It was submitted that as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years, could be said to be an aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.

In the present case, the Court noted that it had been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her body and there was redness and swelling around the vagina as found by the doctor. Thus, the Court asserted that the case would fall under Section 3(b) of the POCSO Act as penetrative sexual assault.

Additionally, the Court considered Section 5(m) of the POCSO Act, as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) and upheld that the action could be said to be 'aggravated penetrative sexual assault' punishable under Section 6 of the POCSO Act. Therefore, the Apex Court upheld the observations made by the Trial Court and the Uttarakhand High Court that had rightly convicted the accused of the offences under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.

On the contention to alter the life imprisonment to any other punishment is concerned, the Court considered this prayer in light of the object and purpose of enactment of the POCSO Act. The Court opined that as per the objectives of enactment of the legislation and Article 15 and 39 of the Constitution, children ought to be protected from the offences of sexual assault, sexual harassment. Thus, the Court observed that any act of sexual assault or sexual harassment to the children had to be viewed very seriously and all such offences of sexual assault, sexual harassment on the children had to be dealt with in a stringent manner and leniency should not be shown to a person who had committed the offence under the POCSO Act.

Hence, the impugned judgment and order passed by the Uttarakhand High Court and the Special Court convicting the accused of the offences punishable under Sections 376(2)(i) of IPC and Section 5 of the POCSO Act and imposing the punishment under Section 6 of the POCSO Act was hereby upheld. However, the sentence of life imprisonment was converted to that of fifteen years rigorous imprisonment, with fine/compensation which would be imposed by the Trial Court and subsequently confirmed by the High Court. Thus, the present appeal was partly allowed.