Section 5 of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Original Text
5. Aggravated penetrative sexual assault.—(a) Whoever, being a police officer, commits penetrative sexual assault on a child —
(i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or
(g) whoever commits gang penetrative sexual assault on a child.
Explanation.—When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a child, which—
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently;
(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;
(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks;
(iv) causes death of the child; or
(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or
(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or
(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence or during any natural calamity or in similar situations; or
(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or
(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public,
is said to commit aggravated penetrative sexual assault.
Visual Summary: Categories of Aggravation
1
Abuse of Authority
Offences committed by Police, Armed Forces, Public Servants, or staff of jails, hospitals, and schools. The law punishes the breach of duty.
2
Extreme Severity
Includes Gang Assault, use of deadly weapons/fire/acid, causing grievous hurt, death, HIV infection, or pregnancy.
3
Vulnerability & Trust
Victim is under 12 years old, disabled, or the offender is a relative, family friend, or person in a position of trust.
Summary
Section 5 is one of the most critical sections of the POCSO Act because it distinguishes between “Penetrative Sexual Assault” (Section 3) and “Aggravated Penetrative Sexual Assault.” While the act of penetration remains the same, the circumstances surrounding the crime make it significantly more heinous in the eyes of the law.
The law recognizes that certain offenders hold power over children (like police, teachers, or doctors) or have a relationship of trust (like relatives). When these individuals commit the crime, the betrayal is deeper, and the trauma is often greater. Furthermore, factors such as the age of the child (specifically under 12 years), the brutality of the violence (use of weapons, gang rape), or the consequences (pregnancy, disease, death) automatically elevate the offence to an “Aggravated” status.
Why does this distinction matter? Being charged under Section 5 carries much harsher punishments (detailed in Section 6), including the possibility of the death penalty in certain cases, compared to the standard provisions.
Key Takeaways
-
✔
Custodial Rape: Strict liability is placed on police, armed forces, and public servants who commit assault within their jurisdiction or duty. -
✔
Age Threshold: Any penetrative sexual assault on a child below 12 years is automatically considered Aggravated. -
✔
Gang Assault: If a group acts with common intention, every member is liable for gang penetrative sexual assault. -
✔
Consequences Matter: Causing pregnancy, HIV, disability, or death elevates the crime to Section 5. -
✔
Recidivism: A repeat offender (previously convicted of sexual offences) is charged under this aggravated section.
Legal Logic Flowchart
Practice Questions
1. Under Section 5(m), penetrative sexual assault is considered ‘aggravated’ if the child is below what age?
Show Answer
Answer: Twelve (12) years. While a child is defined as under 18, Section 5(m) specifically aggravates the offence if the victim is under 12.
2. If a doctor commits penetrative sexual assault on a child patient in a hospital, which clause of Section 5 applies?
Show Answer
Answer: Clause (e). It specifically covers management or staff of a hospital committing the offence in that hospital.
3. Does a “Gang Penetrative Sexual Assault” require all members of the group to physically penetrate the victim?
Show Answer
Answer: No. The Explanation to Section 5(g) states that if the act is done in furtherance of common intention, each person in the group is liable for the act as if they did it alone.
Related Provisions
Conclusion
Section 5 of the POCSO Act serves as a robust shield for the most vulnerable members of society. By meticulously listing scenarios involving abuse of power, trust, and extreme violence, the legislature has ensured that crimes committed by those responsible for protection (like police and family) are met with the severest force of the law. This section underscores the principle that the breach of trust is as damaging as the physical act itself.