POCSO Act – The discrepancy in the victim’s statements regarding the extent of penetration played a crucial role in the Bombay High Court’s decision to reduce the sentence.
The Bombay High Court has lesser the sentences of two individuals previously convicted for the sexual assault and mis-treatment of their 13-year-old orphaned niece. The original conviction by the trial court included charges of rape under section 376(2)(f)(n) of the Indian Penal Code (IPC) and penetrative sexual assault under Sections 4 & 6 of the Protection of Children from Sexual Offences (POCSO) Act, resulting in a 10-year imprisonment. However, Justice Abhay Waghwase of the Aurangabad bench has now reduced this sentence to five years of rigorous imprisonment, citing a reevaluation of the assault’s nature.
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The case came to light when the victim, a sixth-standard student, was found crying in her classroom, reluctant to return home. Upon inquiry by her teacher, the distressing details of her life with her maternal aunt’s family emerged. She recounted being forced into laborious household chores, subjected to starvation, and enduring sexual abuse by her maternal uncle and her aunt’s husband. The abuse included being made to sleep in the bathroom and threats to her life if she disclosed their actions.
The High Court’s decision was influenced by the testimony of the victim, who described the accused touching her private parts and chest, and the lack of evidence for penetrative sexual assault as defined under the relevant sections of the POCSO Act.
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Justice Waghwase noted,
“…victim has deposed about accused nos.1 and 2 touching her private parts and chest with their hands and they sleeping over her person. Resultantly, when such is her testimony, in the considered opinion of this Court, neither penetrative sexual assault nor aggravated penetrative sexual assault can be said to be established.”
This ruling comes amidst discussions on the interpretation of sexual assault under the POCSO Act, with a recent bench of the Bombay High Court holding that touching a penis to a child’s private parts constitutes penetrative sexual assault. The discrepancy in the victim’s statements regarding the extent of penetration played a crucial role in the High Court’s decision to reduce the sentence, highlighting the challenges in proving sexual assault cases.
The prosecution’s case was built on the testimony of nine witnesses, including the girl, her teacher, and the headmaster, leading to the initial conviction. The defense argued the lack of independent corroboration of the victim’s testimony and the absence of proven penetration, a key element in the charge of rape.
The High Court, while reducing the sentence for the accused, maintained the conviction under Section 7 read with Section 8 of the POCSO Act for ‘sexual assault’, acknowledging the victim’s experiences as constituting sexual assault under the Act. The Court’s analysis underscored the credibility of the victim and her teachers’ testimonies, emphasizing the importance of their accounts in the absence of physical evidence for penetration.
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This case emphasized the intricate balance in legal interpretations of sexual assault, particularly under the stringent POCSO Act, prioritizing the rights and dignity of survivors.
