POCSO : Girl Says Accused Poked Fingers At Private Part; Supreme Court To Examine If Offence Of 'Penetrative Sexual Assault' Is Committed

The Supreme Court has issued notice on a petition to examine the issue if the testimony of a minor girl that the accused had poked at her private parts would sustain the conviction of the offence of "penetrative sexual assault" under Section 3(b) of the Protection of Children from Sexual Offences (POCSO) Act, 2021.

A bench comprising Justice Ajay Rastogi and Abhay S Oka issued notice to the 70-year old accused on a special leave petition filed against a Kerala High Court's judgment which altered the conviction under Section 3(b) of POCSO to that of conviction for the offence of "sexual assault" under Section 8.

The High Court had observed that the 12-year old girl's testimony did not indicate that the accused had inserted fingers into her vagina, and hence, the necessary ingredient of the offence of "penetrative sexual assault" - insertion to any extent- has not been proved.

The case revolved around the meaning of the Malayalam word "kuthi" used by the minor girl in her testimony. While the accused argued that it means only touching at the surface of the private part, the prosecution argued that it means insertion.

The trial court had sentenced the accused under Section 3(b) for 7 years imprisonment, which was reduced to 3 years by the High Court after altering the conviction to one under Section 8.

The High Court found force in the argument that "Kuthi ('poked' as translated by the petitioner) used by the minor girl cannot be understood to mean that the girl has stated that the accused has inserted his finger into her vagina.

The High Court said that in order to attract the offence under Section 3(b) of the POCSO Act, the prosecution should have a definite case that the accused had inserted his finger into the vagina of the minor girl.

According to the Court, a case of insertion of a finger cannot therefore, be inferred from the word 'Kuthi" used by the girl. The High Court also observed that the medical evidence did not indicate that insertion had taken place. 

The High Court however held that the accused had meddled with the lower private part of the victim girl using his finger with sexual intent, which is an offence of sexual assault punishable under Section 8 of the POCSO Act.

In the petition filed against the High Court verdict, the minor girl has contended that the word "Kuthi" (poking) in reference to a finger can only mean that insertion has taken place.

However  according to the petitioner this finding is incorrect as section 8 is not intended to deal with meddling with the lower private part of the victim girl by using his finger with sexual intent which is a grave offence which falls within section 3 of the POCSO Act.

The petitioner has argued that the High Court's interpretation of section 3(b) of POCSO Act 2012 will defeat the very object of the enactment of the Act which was made with the objective of protecting children from a slew of sexual offences and introducing child-friendly judicial mechanisms for dealing with such offences.

The petitioner has also cited Supreme Court's judgement in the case of Attorney General For India vs. Satish. In that case, the Court had reversed the controversial judgement of the Bombay High Court in a POCSO case, and had observed that the main ingredient of the offence of sexual assault under Section 7 of the Act was "sexual intent" and and not "skin to skin" contact.

According to the petitioner the Single Judge has taken a rather shocking leniency towards the accused and held that "poking finger "in the vagina as deposed by the prosecutrix, accepted by the Trial court will not attract an offence under section 3(b) of the POCSO Act.

The petitioner has submitted that as a result of the leniency shown by the High court the girl and her family is facing continuous threat from the accused after release from jail.

Adv. Alim Anvar Appeared for the Petitioner. The petition has been filed through Advocate Mohammed Sadique.