Upholding the conviction of a 75-year-old man, Supreme Court ruled that inserting a finger into the vagina of a minor girl would offence of ‘penetrative sexual assault’ under the Protection of Children from Sexual Offences Act (POCSO Act). He was accused of inserting his finger into the vagina of a 4-year-old girl.
The apex court bench comprising Justice MR Shah and Justice BV Nagarathna noted that the offence would be ‘aggravated sexual assault’ when the girl is under 12 years.
“In the present case, it has been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her body and there was redness and swelling around the vagina found by the doctor. We are of the opinion that therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act,” the bench noted.
Supreme Court was hearing an appeal filed by a POCSO accused. He was 65 years old when he committed the offence and was caught red-handed.
A Special Court has convicted him under Section 376(2)(i) of the IPC and Section 5 and 6 of the POCSO Act. The court had sentenced him to life imprisonment.
The High Court dismissed his appeal and upheld his conviction.
He moved an appeal before Supreme Court wherein it was argued that inserting a finger into vagina could at best be a case of attempt to commit aggravated sexual assault under Sections 7 and 8 of POCSO Act.
The appellate had submitted that he could not have been convicted under Section 5/6 of the POCSO Act in absence of penetration and aggravated penetrative sexual assault.
He had also sought directions to reduce his sentence on the ground of his age and also because he is suffering from tuberculosis.
Considering testimony of independent witness Dr. Vandana Sundriyal, the court noted that the accused had lured the girl away from her house, took her into the bushes, disrobed her and removed his clothes as well, and inserted his finger into the girl’s vagina.
“He was about to force himself upon her and commit the offence of rape when he was caught red-handed,” the bench said.
Replying to his request to reduce the sentence, the top court stated that no leniency can be shown to an accused who has committed the offences under the POCSO Act particularly when the same was proved by adequate evidence before a court of law.
The court stated, “In our country, a girl child is in a very vulnerable position…..There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.”
The court added that the majority of the crimes against minor victims are not even reported as very often the perpetrator of the heinous crime is a family member.
The court went on to add, “By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them,”
However, the court reduced his sentence to 15 years of imprisonment.
