POCSO Act
3-Penetrative sexual assault. – A person is said to commit “penetrative sexual assault” ifยญ
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(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; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
4. Punishment for penetrative sexual assault. – Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.
NOTES
Section 366(A) of the Indian Penal Code
It is the contention of the learned counsel for the appellant that the offence under Section 366(A) of the Indian Penal Code would be made out, if only the accused had kidnapped her with an intention to force or seduce her to have illicit intercourse with another person. In other words, the kidnapping of a minor girl from and out of her lawful guardianship to force or seduce her to have sexual intercourse with himself would not make out an offence under Section 366(A) of the Indian Penal Code. I am persuaded by the said argument of the learned counsel for the appellant. A plain reading of Section 366(A) of the Indian Penal Code would make it clear that the person kidnapping and the person with whom a minor girl is forced or seduced to have sexual intercourse should be two different persons. Therefore, the conviction of the appellant under Section 366(A) of the Indian Penal Code is not sustainable and instead, he is liable to be punished only under Section 363 of the Indian Penal Code.
Section 222 of the Code of Criminal Procedure, which reads as follows:-
“222. When offence proved included in offence charged-(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3). When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4). Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”
The aggravated penetrative sexual assault, which is made out of several particulars, includes a mere penetrative sexual assault, which is made out of some of those particulars. Therefore, there can be no difficulty in holding that the Sections 4 and 6 r/w Section 5(l) of the POCSO Act are cognate offences and Section 4 of the POCSO Act is a minor offence to Section 6 r/w Section 5(l) of the POCSO Act.
Now, let us look into the punishment as provided under these penal provisions. Though the maximum punishment awardable under Section 4 as well as Section 6 is imprisonment for life with fine, the minimum punishment provided in Section 4 of the POCSO Act is imprisonment of either description for a term which shall not be less than seven years, whereas the minimum punishment provided under Section 6 of the POCSO Act is rigorous imprisonment for a term which shall not be less than ten years. The term “imprisonment” under Section 4 of the POCSO Act may be of either description, viz., either rigorous or simple, whereas under Section 6 of the POCSO Act, the term imprisonment shall be only rigorous. From these ingredients, it can be noted that in the matter of punishment also, Section 4 of the POCSO Act is minor to Section 6 of the POCSO Act.
