S. 4 POCSO Act | Merely 'Touching' Penis To Child's Private Part Not Penetrative Sexual Assault: Bombay High Court

The Bombay High Court has recently reduced the sentence of two men booked for forcing their 13-year-old orphaned niece to do all household chores, depriving her of food, making her sleep in the bathroom, and sexually abusing her multiple times.

The duo was convicted by the trial court for rape under section 376(2)(f)(n) of the IPC and for penetrative sexual assault under Sections 4 & 6 of the Protection of Children from Sexual Offences (POCSO) Act. They were sentenced to 10 years imprisonment.

Justice Abhay Waghwase of the Aurangabad bench observed that since the men only conclusively touched their penises to the child's vagina, it would not constitute rape. It held them guilty of sexual assault, reducing their sentence to five years of rigorous imprisonment.

The Court thus partially allowed the criminal appeals of the uncles, observing, 

“…victim has deposed about accused nos.1 and 2 touching her private parts and chest with their hands and they sleeping over her person. Resultantly, when such is her testimony, in the considered opinion of this Court, neither penetrative sexual assault nor aggravated penetrative sexual assault can be said to be established.”

Recently, another bench of the Bombay High Court interpreted Sections 3 and 4 of the POCSO Act to hold that touching penis to a child's private parts would amount to penetrative sexual assault.

Facts

According to the prosecution's case, the victim girl studying in 6th standard was noticed crying in her classroom on 7 September 2017 and refused to go home. On enquiry by her teacher, the victim narrated that she was residing with her maternal aunt and the aunt's family after her parents passed away.

She alleged that the appellants her maternal aunt's husband and maternal uncle forced her to do all household work and starved her when she failed to do so. She alleged they punished her by forcing her to sleep inside the washroom and further alleged that when nobody was home, the appellants removed her clothes, touched her private parts and threatened to kill her if she disclosed this to anyone.

The Special Judge at Aurangabad examined nine witnesses including the girl, her teacher and headmaster and found the accused guilty under Sections 376(2)(f)(n) r/w 34, 506 r/w 34 of the IPC and under Sections 4, 6 and 8 of the POCSO Act.

The accused approached the HC against this order. They argued that there was no independent corroboration of the victim's testimony, and penetration which is sine qua non for the offence of rape, has not been established by the prosecution.

After re-appreciating the evidence, the High Court found that the victim in her 164 statement before the Magistrate mentioned complete penetration but her substantive testimony before the trial judge only mentioned touching penis to the vagina.

“Therefore, on comparing both versions i.e. given in substantive evidence before the Court and while giving statement under Section 164 of the CrPC., there is variance to the extent of putting male organ in her urinal place, which is finding place in her statement under Section 164 of the CrPC., but is apparently missing at the time of recording her testimony before trial Court.”

The High Court observed that touching the penis to the vagina did not constitute 'penetration' which was essential to prove rape. Accordingly, the Court held that in the absence of evidence regarding penetration, the conviction under Section 376(2)(f)(n) and Sections 4 & 6 of POCSO Act is unsustainable.

However, the Court maintained the conviction under Section 7 read with Section 8 of POCSO Act for 'sexual assault', as the acts testified by the victim constituted sexual assault as defined under Section 7. Section 7 covers physical contact without penetration but with sexual intent.

“On critical analysis of evidence of victim and teachers of her school, there is no reason to doubt their testimonies. On carefully going through the cross faced by them, their versions in the witnesses box are not rendered doubtful. Infact there is no serious and effective cross of the victim on the point of she been ravished. All attempts by defence while she was under cross seems to have gone futile.”

Case No - CRIMINAL APPEAL NO.642 OF 2020

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