Touching private part with penis is penetrative sexual assault under POCSO Act: Meghalaya High Court

The Meghalaya High Court recently ruled that touching the vagina of a minor with penis amounts to the offence of 'aggravated penetrative sexual assault' under Section 6 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act) [Thoura Darnei v. State of Meghalaya]..A division bench of Chief Justice S Vaidyanathan and Justice W Diengdoh said that even if there is no penetration of penis into vagina, 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 accused had taken the defence that since there was no penetration of penis into vagina, only the offence of sexual assault under Section 7 of POCSO Act would be attracted."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 judgment of July 8, the Court made it clear that the accused cannot take the defence of sexual assault under Section 7 of POCSO Act on the ground that there was no penetration. It held that even an attempt at penetration into the private part of the victim would be enough to put the case under aggravated penetrative sexual assault.The Court, therefore, upheld the trial court decision convicting him for aggravated penetrative sexual assault and sentencing him to 10 years of rigorous imprisonment..In this case, the accused-appellant was convicted for committing rape on a 4-year-old minor girl. As per medical report, there was no trace of semen and even hymen was intact. In the report, a pubic hair of the appellant was found.The Court said that the accused's conviction can be based solely on the prosecutrix's testimony if it is credible. On that basis, the High Court convicted the accused for rape on a minor victim despite the fact that the medical report did not establish the accused's 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..Advocate SD Upadhyaya appeared for the appellant.Government Advocates S Ayin and ER Chyne appeared for the respondent..[Read Judgment]