Even a woman can be booked as a perpetrator of child sexual abuse: Delhi HC in POCSO case ruling

“The word “he” appearing in Section 3 of the POCSO Act cannot be given a restrictive meaning, to say that it refers only to a “male”; but must be given its intended meaning, namely that it includes within its ambit any offender irrespective of their gender,” the ruling stated.

In the case in question, the accused woman is charged with aggravated sexual assault which includes committing “penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child.” Under Section 6 of the POCSO Act, the offence carries a minimum sentence of 20 years to life imprisonment or the death penalty.

Crucially, the provision does not require the accused to have an “intent” to commit sexual assault.

A Delhi court in January this year had sentenced the woman accused to 10 years’ imprisonment under Section 6 of the POCSO Act for aggravated penetrative sexual assault. The accused had then moved the HC challenging the framing of charge under Section 6 of the POCSO Act by the trial court and seeking dropping of charges.

Women are usually booked for “aiding and abetting” the charge of sexual assault but it is not common for them to be booked as a perpetrator.

The accused had argued that the offence of aggravated penetrative sexual assault under the POCSO Act “can never be made out against a woman” since the Act repeatedly uses the pronoun ‘he’. The lawyers of the accused argued that the interpretation of Indian Penal Code provisions on rape, which only criminalises actions of a man, is similar to the definition of penetrative sexual assault in Section 3 of the POCSO Act.

The prosecution, on the other hand, had submitted that the POCSO Act is gender neutral and the word ‘person’ is also used in the definition in Section 3 of the Act and thus it cannot be construed in a narrow sense “and must include women offenders as well”.

The HC disagreed with the argument of the accused interpreting the meaning of “he” used in the Act. The ruling noted that in the IPC, Section 8 states that the pronoun ‘he’ and its derivatives are used of any person, whether male or female. The court also recorded that Section 3 in the POCSO Act itself starts with “a person is said to commit ‘penetrative sexual assault’ if…”