Source: Gauhati High Court

Why in News?

Recently a bench of Justice Kaushik Goswami held that “To bring home the charge of penetrative sexual assault, full penetration of the penis or full insertion of any object or part of body into the vagina is not required; even part penetration/insertion, which may not necessarily cause injury or bruises to the genitals, is sufficient for the purpose of the law”.

• The Gauhati High Court gave this observation in the case of State of Mizoram v. Lalramliana and Anr.

What was the Background of the State of Mizoram v. Lalramliana and Anr Case?

• The case was registered under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) based on an FIR lodged by the informant victim, a 13-year-old girl.
• She alleged that on 5th September 2016, the accused, with whom she stayed for her primary education, sexually assaulted her in a jhum hut on the way to Damcherra, where he forcibly touched her breast and private parts and inserted his finger into her vagina.
• The Court of Special Judge, POCSO, acquitted the accused/respondent No. 1, giving him the benefit of doubt.
• Hence, the victim preferred an appeal before the High Court.

What is the Court’s Observation?

• The court allowed the appeal stating that “In a case where there was superficial digital insertion, a medical examination would not necessarily detect any sign of physical injuries in the genital area of the child. Additionally, superficial digital insertion may not cause tear of the hymen”.
  • In view of the above, charge of penetrative sexual assault is made out the moment there is some degree of insertion. Therefore, non-tear of the hymen is of no consequence.

What is Penetrative Sexual Assault under POCSO?

• About:
  • POCSO Act was enacted on 19^th June 2012 and enforced on 14^th November 2012 to specifically deal with sexual crimes against children in India.
  • It defines different forms of sexual assault, prescribes stringent punishments, and outlines child-friendly procedures for reporting, investigation and trial of such offenses.
  • One of the most serious offences covered under POCSO is Penetrative Sexual Assault against children.
• Penetrative Sexual Assault:
  • Section 3 of the POCSO Act defines Penetrative Sexual Assault.
  • It includes inserting any object or body part into the vagina, urethra, anus or mouth of a child, or applying mouth to the same body parts of the child.
  • It also covers making the child perform such acts on the offender or another person. Any form of penetration, however slight, is considered Penetrative Sexual Assault.
• Aggravated Penetrative Sexual Assault:
  • Section 5 lists out certain situations that make a Penetrative Sexual Assault an "aggravated" offence attracting even higher punishments:
    • Assault by a police officer, member of armed forces, public servant, staff of a children's home/hospital
    • Assault on a child under 12 years of age
    • Assault resulting in physical/mental incapacitation, pregnancy, sexually transmitted disease
    • Repeated assaults on the same child
    • Assault committed by a member of the child's family/relative/person in a position of trust
    • Use of deadly weapons, burns, acid attack etc during the assault
• Punishments Under POCSO:
  • For Penetrative Sexual Assault, Section 4 of the POCSO Act prescribes rigorous imprisonment of not less than 10 years which may extend to life imprisonment, along with fine.
  • In case of Aggravated Penetrative Sexual Assault, Section 6 prescribes the minimum punishment is increased to rigorous imprisonment of 20 years which may extend to life imprisonment.

What are the Landmark Cases Cited in this Case?

• Ganesan v. State represented by its Inspector of Police (2020):
  • Supreme Court held that “In a case of penetrative sexual assault under POCSO Act, conviction can be made on the basis of the sole testimony of the victim”.
• Bhupen Kalita v. State of Assam (2020):
  • Gauhati HC held that “In order to bring home the charge of penetrative sexual assault, full penetration of the male organ or any part of the body into the vagina is not necessary”.