On Wednesday, the Supreme Court rejected an appeal against a Kerala High Court decision which had ruled that poking one’s finger at the vagina of a minor does not qualify as “insertion” and thus does not meet the criteria for “penetrative sexual assault” under the Protection of Children from Sexual Offences Act (POCSO Act).
The accused in the case had been convicted of sexual assault, which carries a sentence of three to five years imprisonment, as opposed to penetrative sexual assault, which carries a minimum sentence of ten years imprisonment.
The High Court had come to this conclusion in June 2020 and had modified the trial court’s original decision. The accused had already served his sentence, but the Supreme Court still considered the question of law before dismissing the appeal.
The case involves an incident where a man broke into the home of a 12-year-old girl and sexually assaulted her while she was watching television. The High Court determined that the Malayalam word “kuthi” used by the girl in her testimony did not suggest the insertion of an object such as a finger into her private parts, but rather only a poke.
The High Court judge pointed out that, in order for the accused to be charged with penetrative sexual assault under Section 3(b) of the POCSO Act, the prosecution would need to have a clear case that the accused had inserted his finger into the victim’s vagina.
The Supreme Court had issued notice on the appeal in March 2020 and had heard arguments in the case. The bench kept the question of law open, but declined to interfere with the High Court’s decision, noting that the accused had already served his sentence and was 75 years old. The court suggested that the accused could not be charged with any other offence in the matter at this stage.
