Placing Penis On Minor's Vagina Can Amount To 'Penetrative Sexual Assault' Under POCSO Act: Kerala High Court

Justice A. Badharudeen observed that 'placing' penis on vagina after removing a child's underwear would amount to slightest degree of 'penetration', attracting the offence of penetrative sexual assault. He added that it is not the same as 'touching', which would attract the offence of sexual assault under Section 7 POCSO Act.

“'Touching' means 'an emotional movement to evoke the feeling in a person who was touched.' 'Placing' means 'setting something in a specific spot or orientation', 'placing something in a particular physical location or the contact'. In fact, placing and touching are not synonymous. That is to say, a touch may not last long and a placement may last longer than a mere touch…the accused placed his penis on her vagina and soon she felt pain and cried. Before that, the accused removed her undergarment. If so, the overt act should not be viewed so lightly to hold that the same is nothing but a mere 'touch' as defined under Section 7 of the POCSO Act,” the Court observed.

The Court was considering an appeal filed by a man who was convicted by the Special Judge for the offences under Sections 3(a), 4(2), 5(m) and 6 of the POCSO Act as well as Sections 376AB of the IPC. The prosecution allegation was that he committed penetrative assault on a 3-year-old girl. He was sentenced to undergo imprisonment of 20 years for each of these offences along with a fine. Aggrieved, he came before the High Court.

The appellant pointed out that the finding of the Special Court regarding commission of penetrative sexual assault was based solely on the testimony of the victim, who had stated that he had placed his penis into her vagina. It was argued that mere placement of penis on vagina would not amount to penetration and the same was akin to touching the vagina.

He contended that the offence of penetrative sexual assault is not made out in the present case. If the evidence given by the victim is to be believed, the only offence that would be attracted is sexual assault under Section 7 POCSO Act, which punishable by a maximum of 5 years as per Section 8. The appellant further added that the medical evidence also do not suggest that there was penetrative sexual assault since the doctor did not notice any external injuries.

Reliance was placed on Laxman Jangde v. State of Chhattisgarh wherein the Apex Court had held that touching minor's private parts would be sexual assault, not rape, as well as Kuttappan @ Babukuttan v. State of Kerala, wherein the Division Bench had held that attempt to insert genitals into the vagina of the child would attract attempt to rape.

The prosecution, on the other hand, pointed out that a mere reading of the victim's testimony would show that appellant placed his penis into her vagina and caused her pain. He argued that there is slightest degree of penetration and relied on Raveendran V.S. v. Deputy Superintendent of Police, wherein it was held that slightest penetration into the labia majora would constitute rape and penile vaginal entry. He also relied on Nawabuddin v. State of Uttarakhand.

After hearing the parties, the Court noted that the victim child was subjected to voir dire test by the Special Judge and was found to be competent to depose. It further took note of the fact the child had deposed that her underwear was removed and the appellant placed his penis on her vagina, causing her pain and making her cry out loud. She also withstood cross-examination, it was noted.

The Court next looked into the other evidence tendered by the witnesses. It then proceeded to examine Sections 3 and 7 of the POCSO Act, dealing respectively with the offences of penetrative sexual assault and sexual assault.

Appreciating the facts of the case as well as the evidence rendered, the Court was of the view that the act of the accused/appellant amount to penetrative sexual assault due to slightest degree of penetration or manipulation of the vagina. Since the victim was younger than 12 years, the Court said that the offence under Section 5 [Aggravated penetrative sexual assault] would also be attracted. It then upheld the finding of conviction.

With respect to the sentence awarded, the Court noted that the Special Judge had awarded punishments for the offences under Section 6 POCSO Act as well as Section 376AB IPC. It said that the sentences were in contravention of Section 42 POCSO Act, which states that when a person is accused of Section 376AB or other specified provisions mentioned therein as well as POCSO Act offences, either of these punishments greater in degree would be awarded.

The Court then set aside the sentence imposed for the offence under Section 376AB IPC and allowed the appeal in part. The sentence imposed under the POCSO Act provisions were upheld.

Counsel for the appellant: Safna P.S., Saurav B.

Counsel for the respondent: M.A. Shihab – Public prosecutor