Law and You > Criminal Laws > POCSO Act > Sexual Assault and Sextual Harassment under POCSO Act, 2012 (Ss. 7 to 10)

Children constitute one of the most vulnerable sections of society and are in constant need of care and protection. The increasing incidents of child sexual abuse in India revealed serious gaps in the existing legal framework before 2012, as the Indian Penal Code (IPC) did not comprehensively define or address various forms of sexual offences against children. To bridge this gap, the Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted, providing a detailed and child-centric legal mechanism to protect minors from sexual exploitation and abuse. In this article let us discuss the offence of the sexual assault under POCSO Act, 2012

The Act defines a wide range of sexual offences in clear and precise terms, recognizing that sexual crimes against children can take multiple forms—ranging from physical assault to non-penetrative acts, sexual harassment, and even exploitation for pornographic purposes. By doing so, it ensures that no form of sexual abuse escapes legal scrutiny. The nature of offences defined under the POCSO Act reflects a holistic understanding of child safety and aims to punish not only the act of abuse but also the circumstances and intent behind it.

The Act classifies sexual offences into various categories, covering a wide range of abusive acts as follows:

• Penetrative sexual assault (Sections 3 and 4)
• Aggravated Penetrative Sexual Assault (Sections 5 and 6)
• Sexual assault (Sections 7 and 8)
• Aggravated Sexual Assault (Sections 9 and 10)
• Sexual harassment (Sections 11 and 12)
• Using Child for Pornographic Purposes (sections 13 to 15)

Each category is clearly defined, with distinct punishments based on the severity and nature of the crime. In this article let us discuss the offence of the penetrative sexual assault under POCSO Act, 2012

Sexual Assault (Sections 7 & 8)

Definition of Sexual Assault (Section 7):

According to Section 7 of the POCSO Act, 2012 whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

Punishment for sexual assault (Section 8):

Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Case Laws:

In Subhankar Sarkar vs State of West Bengal Crl.A.No.32/2014 case, the Calcutta High Court held that in the absence of clinching evidence of rape or penetrative sexual assault, the accused cannot be convicted under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012. In the present case upon the examination of the victim, it is found that no sexual intercourse was possible upon her and her private parts were found to be intact with no signs of injuries but scratch marks were found on the body of her indicating the use of force and only sexual assault was committed against the victim and not Penetrative sexual assault.

In Attorney General of India v. Satish and Another (2022) 5 SCC 545 case, the Supreme Court while setting aside the judgement of Bombay High Court held that “the interpretation of Section 7 of POSCO Act, 2012 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act, 2012 is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act”.

What makes an offence “Aggravated”?

Under the Protection of Children from Sexual Offences (POCSO) Act, 2012, certain sexual offences are categorized as “aggravated” because they are committed under circumstances that make the act more serious, exploitative, or harmful to the child. These situations often involve a higher degree of cruelty, abuse of authority, or breach of trust.

Status of the Accused:

In such a situation, the offender holds a position of authority, trust, or responsibility as mentioned below:

• Accused is a police officer, member of Armed Forces or Security Forces or Public Servant; or
• Accused in on the management or staff of a jail, remand home, protection home, observation home, any other place of custody or care and protection, hospital, educational or religious institution and victim is in such place; or
• Accused is relative of child through blood or adoption or marriage or guardianship or foster care or is having domestic relationship with a parent of the child or who is living in the same or shared household with the child; or
• Accused is in ownership or on management or staff any institution providing services to the child and child is in such institution; or
• Accused is a person in position of trust or authority of the child in an institution or home of the child or elsewhere; or
• Accused has been previously convicted of any POCSO Offence or any sexual offence under any law in force

Manner of Committing Offence:

In such situation, the offence is committed in special circumstances as mentioned below:

• Offence is committed by a gang
• Offence is committed using deadly weapons, fire, heated substance or corrosive substance
• Offence has been committed by taking advantage of physical or mental disability of the child
• Offence has been committed more than once or repeatedly
• Accused commits the offence and attempts to murder the child.
• Accused has committed offence in course of a communal or sectarian violence
• Accused commits the offence and makes the child to strip or parade naked in public

Impact of Offence on Child:

The offence results in extreme physical or psychological harm, such as grievous injury, permanent damage, or death of the child.

• Offence is committed causing grievous hurt or causing bodily harm or injury or injury to the sexual organ of child
• Offence has physically incapacitated the child or has caused mental illness or impairment of any kind which renders the child unable to perform regular tasks, temporarily or permanently
• Offence has inflicted HIV or any other life threatening disease or infection which either temporarily or permanently impairs the child by rendering him physically incapacitated or mentally ill to perform regular tasks

Status of Victim Child:

In this, situation the victim child is vulnerable:

• Victim Child is below 12 years of age
• Accused commits an offence knowing that the child is pregnant

Thus, an offence is termed “aggravated” when the power dynamics, vulnerability of the child, or the gravity of harm make the act more serious than a standard offence, justifying enhanced punishment to ensure justice and deterrence.

Aggravated Sexual Assault (Sections 9 & 10)

Definition of Aggravated Sexual Assault (Section 9):

“Aggravated Sexual Assault” is said to be committed when the sexual assault as defined in Section 7 of the POCSO Act, 2012 is committed by the person in the position of trust and authority of the child such as a member of security forces, police officer and public servant, by any staff, principal or the management staff of the hospital or any place of custody or care or protection.

Punishment for Aggravated Sexual Assault (Section 10):

Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

In Sofyan v State 2017 DHC 1838 case, the Delhi High Court upheld the conviction of Trial court for the offence of Aggravated sexual assault and dismissed the appeal. The High court also observed that sexual assault on a tender aged girl is bound to create a permanent impact and impression on the mind of such a girl, which may permanently affect her adversely.

Sexual Harassment (Section 11 and 12):

Definition of Sexual Harassment (Section 11)

Section 11 of the Protection of Children from Sexual Offences (POCSO) Act defines “sexual harassment” against a child, outlining six specific actions that constitute this offense when done with sexual intent. These actions include:

• Uttering any word or making any sound, or making any gesture or exhibiting any object or part of body with the intention that such word or sound be heard, or such gesture or object or part of body be seen by the child; or
• Making a child to exhibit his body or any part of his body so as it is seen by such person or any other person; or
• Showing any object to a child in any form or media for pornographic purposes; or
• Repeatedly or constantly following or watching or contacting a child either directly or through electronic, digital or any other means; or
• Threatening to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
• Enticing a child for pornographic purposes or gives gratification therefor. 

For an act to be considered sexual harassment under this section, it must be proven to have been committed with sexual intent. Any question which involves “sexual intent” shall be a question of fact.  The definition covers acts committed through electronic, digital, or other means, which includes online stalking and harassment.

Punishment for Sexual Harassment (Section 12):

Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Conclusion:

The provisions on Sexual Assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012 reflect the legislature’s firm resolve to safeguard children from all forms of sexual exploitation, including acts that may not involve penetration but still violate the bodily integrity and dignity of the child. By defining sexual assault broadly and prescribing stringent punishments, the Act ensures that offenders are brought to justice and that every act of abuse, irrespective of its degree, is treated with the seriousness it deserves.