LI Network
Published on: February 3, 2024 at 12:29 IST
In a recent verdict, the Bombay High Court has reduced the sentence of two individuals convicted of sexually abusing their 13-year-old orphaned niece.
The men were also found guilty of forcing the victim to perform household chores, depriving her of food, and confining her to sleep in the bathroom.
Initially convicted under Section 376(2)(f)(n) of the Indian Penal Code (IPC) and Sections 4 & 6 of the Protection of Children from Sexual Offences (POCSO) Act, the defendants were sentenced to 10 years of imprisonment.
However, Justice Abhay Waghwase of the Aurangabad bench observed that while the men did touch their genitalia to the child’s genitals, it did not amount to rape. Instead, the court found them guilty of sexual assault and reduced their sentence to five years of rigorous imprisonment.
The Court’s decision, which partially allowed the defendants’ criminal appeals, was based on the victim’s testimony, which stated that the defendants touched her private parts without penetration. As such, the Court concluded that neither penetrative sexual assault nor aggravated penetrative sexual assault could be established.
The verdict contrasts with a recent interpretation of Sections 3 and 4 of the POCSO Act by another bench of the Bombay High Court, which held that touching a child’s private parts with the penis constitutes penetrative sexual assault.
According to the prosecution’s case, the victim, a sixth-grade student, was living with her maternal aunt’s family following the death of her parents. She alleged that her maternal aunt’s husband and uncle subjected her to physical and emotional abuse, including starvation and confinement in the bathroom.
Additionally, she claimed that the defendants touched her private parts and threatened her with harm if she disclosed the abuse.
The defendants contested the conviction, arguing a lack of independent corroboration of the victim’s testimony and the absence of evidence establishing penetration, a prerequisite for rape.
Upon re-evaluating the evidence, the High Court determined that while the victim’s statement before the Magistrate mentioned penetration, her testimony during the trial only referenced touching.
As a result, the Court concluded that touching the genitals to the vagina did not constitute penetration, rendering the convictions under Section 376(2)(f)(n) of the IPC and Sections 4 & 6 of the POCSO Act unsustainable.
However, the Court upheld the conviction under Section 7 read with Section 8 of the POCSO Act for sexual assault, as the acts described by the victim fell within the definition of sexual assault outlined in Section 7, which covers physical contact with sexual intent.
The High Court’s decision underscores the importance of precise legal interpretation and evidentiary standards in cases involving sexual offenses against children.