S.4 POCSO Act | Merely 'Touching' Penis To Child's Private Part Constitutes Penetrative Sexual Assault: Bombay High Court

The Bombay High Court denied bail to a man accused of sexually assaulting his nieces observing that even touching the penis to the victim's vagina with sexual intent constitutes the offence penetrative sexual assault on a minor under Section 4 of the Protection of Children from Sexual Offences Act (POCSO).

“…even in case of penetrative sexual assault, it is not essential that there must be some injury to the hymen, labia majora, labia minora of the victim. Mere touching of the penis to the private part of the victim constitutes an offence under section 4 of the POCSO Act…,” Justice Prithviraj Chavan observed.

The court interpreted phrases 'inserts or penetrates to any extent' mentioned in Section 3 (a) and 3 (b) of the POCSO, which describes penetrative sexual assault, to include touching of the reproductive organs. The minimum punishment for the offence is prescribed under Section 4 and is 20 years.

Facts

The accused was the victim's uncle, husband of their father's sister. It was an interfaith love marriage with the aunt, a Muslim, married the accused, a Hindu man.

The victim's mother filed a complaint alleging that her two daughters aged 9 and 13 were sexually abused by the accused several times between 2016-2019 when the children visited his home. He allegedly showed them pornographic videos, clicked their nude photos and threatened to make them leak them if they revealed the acts.

The girls further alleged the man touched their private parts inappropriately. Whenever the victim used to bleed or had a stomach-ache after sexual exploitation by the applicant, he used to administer some medicines and tablets.

In 2021, the accused was charged under Sections 376 (2) (f),(i),(n) 500, 506 of the IPC and under sections 4, 6, 8 and 12 of the POCSO and also under Sections 43 (a) and 67-A of the IT Act, 2000.

The defence argued the case was fabricated due to a property dispute in the family. He claimed a partition suit was pending and brother wanted his wife to give a no objection certification.

Moreover, he claimed medical reports did not support the allegations as there were no visible injuries on the victims.

However, the Court relied on statements of the victims recorded under CrPC Sections 161 and 164 as well as electronic communication between the accused and one victim, as well as a communication between the accused and the victim's father.

Regarding the communication to the victim's father the court said, “Prima facie, it indicates that the applicant had a feeling of repentance, for, whatever, had been done by him or committed by him had something to do with his similar childhood experience from his father's friend.”

As for the messages allegedly sent by the accused to the victims, the court observed prima facie it shows how the accused had “systematically seduced the gullible victim by betraying the trust which she had reposed in him as an elderly family person.”

The court further held it was unlikely for there would be strong medical evidence as the incident was reported late.

Moreover, the Court held that as per Sections 3(a) and (b) of the POCSO Act, even slight penetration or touching of the penis with sexual intent to the private parts of a minor amounts to "penetrative sexual assault". Physical injuries like rupture of hymen are not essential to prove the offence.

The Court relied on guidelines for medical examination of child victims which state that children are more easily threatened and abuse is often by persons known and trusted by the child. Hence even in the absence of physical evidence, the child's statements must be believed.

Considering the accused is a close relative of the victims, his release could adversely impact and traumatize the minors. The Court apprehended chances of him influencing the victims and other witnesses if released on bail.

"Keeping in mind this position, it cannot be said that the allegations against the applicant are totally concocted or false. The applicant indeed betrayed the trust reposed in him by the victim and succeeded in executing his illegal act of molesting her which definitely constitutes offence not only under the POCSO Act but also under the provision of the I.P.C.", the Court observed while denying bail.

Case No- CRIMINAL BAIL APPLICATION NO.1207 OF 2022