A single penetrative sexual assault in one transaction does not constitute aggravated assault under Section 5(l) POCSO.

The appellant was prosecuted for allegedly sexually assaulting a 17-year-old girl on 10 November 2018.

The prosecution case was that he first subjected her to sexual acts in a lane and thereafter took her into his grandmother’s house, removed her clothing and committed penetrative sexual assault, while also threatening her with death if she disclosed the incident.

The victim’s complaint was recorded at the Government Medical College Hospital, Asaripallam, and an FIR was registered under Section 376 of the IPC and Sections 5(l) and 6 of the POCSO Act.

The victim, her parents, the investigating officers, and the medical officer were examined, and the medical evidence stated that sexual intercourse could not be ruled out, although no semen or spermatozoa were detected.

The Special Court convicted the appellant under Sections 5(l) and 6 of the POCSO Act and Section 506(i) of the IPC, sentencing him to twenty years’ rigorous imprisonment under the POCSO Act and one year’s rigorous imprisonment under Section 506(i) IPC, with fines.

The appellant challenged the conviction and sentence before the High Court.

Whether the conviction and sentence imposed by the Trial Court were sustainable on the evidence on record?

Whether the appellant’s conduct constituted aggravated penetrative sexual assault under Sections 5(l) and 6 of the POCSO Act, or only penetrative sexual assault under Sections 3 and 4 of the Act?

Whether the conviction under Section 506(i) of the IPC should be interfered with?

The Court applied Section 3 of the POCSO Act, which defines penetrative sexual assault, and Section 4, which prescribes punishment for that offence.

It considered Section 5(l), which treats the commission of penetrative sexual assault more than once or repeatedly as aggravated penetrative sexual assault, punishable under Section 6 of the POCSO Act.

The Court also applied Section 506(i) of the IPC concerning criminal intimidation, and Section 428 of the Cr.P.C. concerning set-off of the period of imprisonment already undergone.

The governing principle was that conviction for aggravated penetrative sexual assault requires proof of the aggravating circumstance alleged; a single act of penetration occurring during one transaction does not, by itself, satisfy Section 5(l).

The High Court accepted the victim’s testimony regarding the occurrence and found that it established one act of penetrative sexual assault inside the grandmother’s house.

Although the victim stated that the appellant had pressed his private part against hers in the lane, she did not state that penetration or insertion occurred at that stage.

The Court therefore distinguished the earlier sexual acts from the subsequent penetrative assault and held that the evidence disclosed only one act of penetration during the same transaction.

Consequently, the statutory requirement for aggravated penetrative sexual assault under Section 5(l) was not established, and the conviction under Section 6 could not be sustained.

However, the evidence proved penetrative sexual assault punishable under Sections 3 and 4 of the POCSO Act.

The threat attributed to the appellant supported the separate conviction under Section 506(i) IPC, which the Court upheld.

The conviction and sentence under Sections 5(l) and 6 of the POCSO Act were set aside.

The appellant was instead convicted under Section 4 read with Section 3 of the POCSO Act and sentenced to seven years’ rigorous imprisonment with a fine of ₹1,000, with three months’ simple imprisonment in default.

The conviction and sentence under Section 506(i) IPC—one year’s rigorous imprisonment with a fine of ₹1,000—were sustained.

Both sentences were directed to run concurrently, and the period already undergone was ordered to be set off under Section 428 Cr.P.C.; any excess fine paid was directed to be refunded.