Source: Bombay High Court

Why in News?

Recently, the Bombay High Court has held that mere touching of the penis to the private part of the victim constitutes an offence under section 4 of the Protection of Children from Sexual Offences Act ,2012 (POCSO).

What is the Background of the Case?

• In this case, the accused was the victim’s uncle.
• A complaint was filed by the victim's mother alleging that her two daughters aged 9 and 13 were sexually abused by the accused several times between 2016-2019 when the children visited his home.
• The girls further alleged the man touched their private parts inappropriately.
• In the year 2021, the accused was charged under Sections 4, 6, 8 and 12 of the POCSO.
• Thereafter, the accused filed a bail application before the Bombay High Court which was later denied by the Court.

What were the Court’s Observations?

• Justice Prithviraj Chavan observed that even in cases of penetrative sexual assault, it is not essential that there must be some injury to the hymen, labia majora, labia minora of the victim. Mere touching of the penis to the private part of the victim constitutes an offence under Section 4 of the POCSO.
• The Court further interpreted phrases 'inserts or penetrates to any extent' mentioned in Section 3 (a) and 3 (b) of the POCSO, which describes penetrative sex assault, to include touching of the reproductive organs.

What are the Relevant Legal Provisions?

POCSO Act

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO Amendment Act, 2019.
• Under Section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.

Section 4 of POCSO

• Section 4 of this Act prescribes punishment for penetrative sexual assault. It states that-

(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

Section 6 of POCSO

• Section 6 of this Act deals with the punishment for aggravated penetrative sexual assault. It states that—

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

Section 8 of POCSO

• Section 8 of this Act deals with the punishment for sexual assault.
• It states that whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.

Section 12 of POCSO

• Section 12 of this Act deals with the punishment for sexual harassment.
• It states that whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.