[POCSO Act] Touching Victim's Private Parts With Penis Amounts To Offence Of Aggravated Penetrative Sexual Assault: Meghalaya High Court

Recently, the Meghalaya High Court observed that touching the private parts of the victim with a penis would amount to committing an offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act, 2012.

The Court said that the accused act of touching private parts of the victim with his penis without penetration into the vagina would not amount to committing a sexual assault (under Section 7 of POCSO) but aggravated penetrative sexual assault.

“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 Bench comprising Chief Justice S. Vaidyanathan and Justice W. Diengdoh said.

The punishment for committing an offence of aggravated penetrative sexual assault under Section 5 is not less than 20 years being extendable up to imprisonment for life. Whereas, the maximum punishment for committing an offence of sexual assault under Section 7 is 5 years.

The Judgment authored by Chief Justice S. Vaidyanathan clarified that the accused cannot take advantage of a lesser punishment imposed under Section 7 because of the absence of an act of penetration. According to the court, an attempt to penetrate the penis into the vagina would amount to committing an act of aggravated penetrative sexual assault.

Under Section 7, a Sexual Assault is said to be done when an attempt is made to touch the private parts of the victim with sexual intent. For committing sexual assault penetration is not required.

Objections were raised by the Accused regarding the non-corroboration of the victim's testimony with another piece of evidence such as a medical report. However, the Court rejected the Accused contention after finding that the victim's statement was creditworthy being able to be solely relied on to convict the accused.

Moreover, the court found that the accused was not able to sufficiently discharge the presumption of committing an offence raised against him by not providing an explanation for not committing an offence when questions were posed to him under Section 313 of Cr.P.C.

Accordingly, the Court dismissed the appeal and confirmed the order of the trial court convicting the accused.

Advocate Mr. S.D. Upadhaya, Legal Aid counsel appeared for the Appellant-Accused

Government Advocates S. Ain, GA with Mr. E.R. Chyne appeared for the State

Case Details: Shri Thoura Damei versus State of Meghalaya through the Public Prosecutor

Citation: 2024 LiveLaw (Megh) 19

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