Sundari Gautam v. State of NCT Delhi, 2024

 

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163


Can a Women be convicted under section 4


Punishment for aggravated penetrative sexual assault?

Ans. It is clear that the pronoun he‟ is not defined anywhere in the POCSO Act. In view of the provision of section 2(2) of the POCSO Act, one must fall back upon the definition of that pronoun as it appears in section 8 of the IPC [ 2(10) of BNS ] Giving due regard to the fact that the Legislature enacted the POCSO Act in order to provide protection to children from sexual offences – regardless of whether an offence is committed upon a child by a man or a woman – the court must not interpret any provision of the statute that derogates from the legislative intent and purpose.

Interpretation based on legislative intent to protect child from sexual offences and a technical interpretation by refering to the principal act for residuary definition clause.


Section 2(10) BNS-

 “gender”.—The pronoun “he” and its derivatives are used of any person, whether male, female or transgender. 


Section 3 of POCSO reads as under:

3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if— 

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or 

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or 

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or 

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 


illogical to say that the offence contemplated in those provisions refers only to penetration by a penis.


Question: Difference between Section 63 BNS earlier 375 IPC and section 3 and 5 of POCSO ?


Issue: Independent thought v. UoI, 2017 held 375 IPC and section 3 and 5 POCSO in pari materia that is no differentiation then why 'he' in POCSO is different than in IPC/BNS 


The essential offence is same in both but 3 and 5 of POCSO is not limited to the offence of rape.


375 IPC starts with Man and 3 & 5 POCSO starts with Person.

There is no reason why he should not be read as person in 3 and 5 therefore women can be held liable.