The Supreme Court on Wednesday rejected an appeal against a Kerala High Court judgment that had held that poking one’s finger at the vagina of a minor does not amount to the act of ‘insertion’ into private parts, to attract the offence of ‘penetrative sexual assault’ under the Protection of Children from Sexual Offences Act (POCSO Act).
The High Court had in June 2020 modified the trial court’s conviction of the accused from penetrative sexual assault to the lesser offence of sexual assault. The former offence carries a sentence of not less than ten years imprisonment, while the latter carries a three to five years imprisonment.
A top court bench of Justices BR Gavai and Sanjay Karol today noted that the accused had already served his sentence, but kept open the question of law before rejecting the appeal.
“In the facts and circumstances of the case, we are not inclined to interfere. Dismissed,” the Court said.
The case arose from an incident where a man trespassed into the house of a 12-year-old girl and sexually assaulted her while she was watching television.
The High Court had reasoned that the Malayalam word ‘kuthi’ (poke) which was used by the minor girl in her deposition, does not indicate insertion of any object like finger into the minor’s private parts but could only mean poke.
“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 single-judge had stated.
It was explained that the High Court is fortified in its view because the POCSO Act categorises sexual offences under different heads, and different punishments are provided for different offences having regard to its gravity.
The Supreme Court had in March last year issued notice on the appeal against the High Court order filed by the minor survivor’s mother.
At the hearing today, counsel for the petitioner, advocate Sriram Parakkat stressed that the case was one of penetrative sexual assault, and the survivor had made it clear in her depositions that she was poked at the place from which she urinates.
“Kuthi definitely means insert [here],” he said.
Justice Gavai then remarked that this aspect was already settled in the decision of the Supreme Court that had set aside a controversial Bombay High Court judgment which held that pressing the breast of a child without removing her clothes will not amount to ‘sexual assault’ under Section 7 of the POCSO Act since there was no “skin-to-skin” contact.
The Collegium had subsequently refused to recommend that the additional judge who had authored that judgment be made permanent, the bench pointed out.
The counsel for the respondent also sought to make submissions but the Court did not entertain it.
“Are you seriously contesting this petition? The High Court says you have done it. The hymen is torn. And she is 12! The grandmother makes the complaint”, Justice Karol said.
After the bench then noted that the convict has served the sentence and around 75 years old, it declined to interfere with the High Court’s order.
While stating that the question of law is kept open, the bench indicated that the accused could not be charged for any other offence in the matter at this stage.
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