[POCSO Act] Description Of Incident Assumes Significance As Child Might Not Know What Is Sexual Assault: Madras High Court

The victim child will have no idea about a sexual assault and it will be a very terrifying experience for a child, who will only get an impression that someone is trying to physically assault her. Hence, from the perspective of a child, a sexual assault will be understood at that age, only as a physical assault like hitting or pinching. Therefore, the description about the incident assumes a lot of significance for the Court to come to a conclusion as to whether there was penetrative sexual assault in a given case.

Background

The child who was aged about 6 years was playing near a temple when the appellant lured under the pretext of giving her chocolate and took her to a nearby building where he removed her inner garments and committed penetrative sexual assault on her. The appellant then threatened the child to not inform about this incident to anyone.

When the mother of the child came to know of this incident, she gave a police complaint and an FIR was registered for offences under Section 5(m) and 6 of the POCSO Act and Section 376-AB, 294(b) and 506(I) IPC against the appellant and his sister. On appreciation of facts, the lower court concluded that the charges against the appellant were proved beyond reasonable doubt but acquitted the sister of the appellant from all charges.

The appellant contended that the case was a false one foisted against the appellant as he had seen the mother of the victim in a compromising position with another man. He further contended that even from the statements recorded from the victim, it will only constitute an offence of sexual assault under Section 7 of the POCSO Act as there was no proof of penetrative sexual assault. It was further submitted that the incident could not have happened in a public place and hence the entire case of prosecution was unbelievable.

The prosecution however argued that the evidence of the victim girl was natural and was corroborated by the evidence of the mother. Further, since the appellant had failed to discharge his burden, the court has to presume that the offence has been made out.

The court noted that the victim child, who was only 6 years old did not possess the maturity to improve upon her statement particularly when it involved sexual assault. The victim had also identified the appellant. The court thus found the victim’s evidence to be reliable.

Further, the victim had clearly stated that the appellant had placed his penis over the vagina of the victim child. As per Section 3 of the POCSO Act, there is no requirement that the penis should have penetrated the vagina. Thus, the evidence of the victim child clearly satisfied the requirement of Section 3(a) of the POCSO Act, Court said.

The court further disagreed with the submission of the appellant that the incident only constitutes an offence under Section 7. The court noted that the purport of Section 7 could only be understood as touching with hands and thus, the interpretation sought to be given by the appellant went beyond the scope of Section 7.

Thus, finding that the charges against the appellant were proved beyond doubt, the court refused to interfere with the sentence and dismissed the appeal.

Case Title: Manikandan v. State

Citation: 2023 LiveLaw (Mad) 1