[POCSO Act] Supreme Court to consider if "pricking private parts" amounts to penetrative sexual assault under Section 3(b)

The Supreme Court will examine whether the offence of "penetrative sexual assault" under Section 3(b) of the the Protection of Children from Sexual Offences (POCSO) Act will be attracted on the basis of the statement of a minor victim who said the accused "pricked her private parts".A Bench of Justices Ajay Rastogi and Abhay Oka on Wednesday issued notice on an appeal filed by the minor survivor's mother against the verdict of the Kerala High Court which held that such a statement from the survivor would not establish penetrative sexual assault under Section 3(b) of the POCSO Act. .The case pertains to an incident where a man allegedly trespassed into the house of a 12-year-old girl and sexually assaulted her while she was watching television.The Kerala High Court verdict came on the appeal filed by the accused against the decision of the First Additional District and Sessions Court, Kollam which found him guilty under Section 451 of the Indian Penal Code and Section 3 read with Section 4 of the POCSO Act. For the offence under the POCSO Act, he was sentenced by the trial court to undergo rigorous imprisonment for 7 years and to pay fine of ₹50,000, and in default of payment of fine, to undergo simple imprisonment for three more months under Section 3 read with Section 4 of the POCSO Act. The accused was also sentenced by trial court to undergo rigorous imprisonment for 2 years and to pay fine of ₹25,000 and in default of payment of fine, to undergo simple imprisonment for three more months for the offence punishable under Section 451 IPC.The trial court had also ordered the substantive sentences to run concurrently.The prosecution case rested significantly on the evidence tendered by the minor survivor. Pertinently, the High Court noted that she narrated the conduct of the accused in making her lie down on the floor and pricking her lower private part using his finger after removing her clothes. This was used by the prosecution to establish the offence under Section 3(b) of the POCSO Act which reads as follows:“3. Penetrative sexual assault.- A person is said to commit “penetrative sexual assault” if-(b) he inserts, to any extent, any object, or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person;".However, the High Court disagreed and held that the words used by the survivor which translates from Malayalam to "pricking", along with the medical evidence, did not conclusively prove the offence of "penetrative sexual assault""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 victim girl. Cambridge Dictionary defines the word 'insert' to mean 'to put something inside something else'. A case of insertion of a finger cannot, therefore, be inferred from the word 'kutthi' used by the victim girl," the High Court said. .The High Court explained that it is fortified in its view because the POCSO Act categorises sexual offences under different heads such as, penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, etc. and different punishments are provided for different offences, having regard to its gravity. Therefore, it was the duty of courts to carefully examine each case as to the category of offence, the Court said, while partly allowing the appeal as far as it related to the conviction and sentencing under Section 3 of the POCSO Act.Since, from the evidence, it was clear that the "the accused had meddled with the lower private part of the victim girl using his finger with sexual intent", the Court convicted him under Section 8 of the POCSO Act. Hence, the High Court altered the conviction of the accused to one under Section 7 of the POCSO Act and imposed a sentence of imprisonment of three years and to pay a fine of ₹50,000 and in default of payment of fine to undergo simple imprisonment for another term of three months. .The alteration of conviction and sentence by the Kerala High Court has now been challenged before the Supreme Court. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.