Background
The Meghalaya High Court has held that touching the breast of a child with sexual intent constitutes sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), even when there is no allegation of penetration.
Justice Revati Mohiti Dere made the observation while dismissing an appeal filed by a man convicted under Section 9(n) read with Section 10 of the POCSO Act.
The appellant was the uncle of a 15-year-old girl who was staying at his house for her studies. The prosecution alleged that he sexually assaulted her on September 23, 2019. The girl later disclosed the incident to her elder sister, following which her mother lodged an FIR.
The Special POCSO Court convicted the appellant under Section 9(n) read with Section 10 of the POCSO Act and sentenced him to five years of rigorous imprisonment. He subsequently challenged the conviction before the High Court.
Legal Issue
The main issue before the High Court was whether an act involving physical contact with a child’s breast could constitute sexual assault under Section 7 of the POCSO Act when there was no penetrative sexual assault.
Section 7 defines sexual assault to include touching the vagina, penis, anus or breast of a child with sexual intent, as well as other acts involving physical contact with sexual intent without penetration.
The appellant challenged the conviction despite the survivor and other witnesses stating that there had been no penetrative sexual assault.
The Court therefore had to determine whether the absence of penetration affected the applicability of the statutory definition of sexual assault.
Court Ruling
The High Court held that penetration is not an essential requirement for an offence to fall within Section 7 of the POCSO Act.
The Court referred to the express language of the provision, which covers physical contact with the breast of a child when such contact is accompanied by sexual intent.
The Court noted that the survivor had specifically stated that the appellant had fondled her breasts. This part of her testimony remained unchallenged during cross-examination.
The High Court therefore held that the absence of penetrative sexual assault did not undermine the prosecution case. The nature of the act alleged was sufficient to fall within the statutory definition of sexual assault under Section 7, provided the required sexual intent was established.
The Court also considered the evidence of the survivor’s mother and sister, who supported the disclosure of the incident. Finding no material infirmity in the evidence relied upon by the trial court, the High Court upheld the conviction under Section 9(n) read with Section 10 of the POCSO Act.
The appeal was consequently dismissed, and the five-year sentence imposed by the Special POCSO Court was upheld.
Implications
The judgment clarifies the distinction between penetrative sexual assault and sexual assault under the POCSO Act. Section 7 specifically covers physical contact with a child’s breast when it is carried out with sexual intent, even when the conduct does not involve penetration.
The ruling also highlights that the prosecution does not need to establish a penetrative act to invoke Section 7. The nature of the physical contact and the presence of the required sexual intent remain central to determining whether the provision applies.
The case further demonstrates the importance of the survivor’s testimony. In the present matter, the High Court noted that the survivor’s evidence regarding the appellant’s conduct remained unchallenged and was supported by the evidence concerning her subsequent disclosure.
The judgment therefore reinforces the statutory protection provided by the POCSO Act against sexual contact with children that falls short of penetration but nevertheless involves physical contact with sexual intent.
Case Title: Rockyroy Lyngkhoi v. State of Meghalaya & Ors.
