[POCSO] Inserting finger into vagina of minor girl is penetrative sexual assault: Supreme Court

The Supreme Court on Tuesday held that the act of inserting a finger into the vagina of a minor girl would amount to an offence of 'penetrative sexual assault' under the Protection of Children from Sexual Offences Act (POCSO Act) [Nawabuddin vs State of Uttarakhand]..If the girl is under 12 years, then the offence would be of 'aggravated penetrative sexual assault', a Bench of Justices MR Shah and BV Nagarathna said.The Court, therefore, upheld the conviction of a 75-year-old man who was accused of inserting his finger into the vagina of a 4-year-old. "In the present case, it has 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 found by the doctor. We are of the opinion that therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act," the Court held.The Court was hearing an appeal of an accused who was convicted for luring a four-year-old and inserting his finger into her vagina, till he was caught red-handed and arrested by the police. The accused was 65 years old at the time of commission of the offence. .The special court had convicted the accused for offences under Sections 376(2)(i) of the IPC and Sections 5 and 6 of the POCSO Act and he had been sentenced to life imprisonment. The High Court dismissed the appeal by the accused and confirmed the conviction and sentence. This led to the present appeal before the Supreme Court. The appellant argued that inserting finger into the vagina could at best be a case of attempt to commit aggravated sexual assault under Sections 7 and 8 of POCSO Act. It was submitted that in absence of penetration and aggravated penetrative sexual assault, the appellant could not have been convicted for the offences punishable under Section 5/ 6 of the POCSO Act.He also prayed for a reduction in the sentence since he was suffering from tuberculosis and was of advanced age..The Court, relying on the testimony of independent witness Dr Vandana Sundriyal, concluded that the accused had lured the girl away from her house, took her into the bushes, disrobed her and removed his clothes as well, and inserted his finger into the girl's vagina.He was about to force himself upon her and commit the offence of rape when he was caught red-handed, the Court noted.The Court, therefore, concluded that an offence of penetrative sexual assault was made out and upheld the conviction for offences under Sections 5/6..Regarding the prayer to reduce the sentence of life imprisonment, the top court said that no leniency can be shown to an accused who has committed the offences under the POCSO Act particularly when the same was proved by adequate evidence before a court of law.In this regard, the Court adverted to the object of the POCSO Act and the vulnerable position of children in the society."In our country, a girl child is in a very vulnerable position.....There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas," the Court stated.It further noted that most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend.."By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them," the judgment said.It, therefore, upheld the trial court and High Court verdicts..However, noting that the appellant was 75-years-old and suffering from tuberculosis, the Bench reduced his sentence to imprisonment for 15 years. .[Read Judgment]