Section 5 POCSO: Aggravated penetrative sexual assault
Protection of Children from Sexual Offences Act, 2012
Section 5 POCSO at a Glance
Section 5 POCSO defines 21 categories of aggravated penetrative sexual assault, clauses (a) to (u), based on the offender's position of authority, the severity of harm, the victim's vulnerability or age below 12 years, or repeat offending. Section 5 POCSO sets no punishment of its own.
Section 5 POCSO Bare Act 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.
Amendments to this section
- The word "or" omitted by Act 25 of 2019, s. 4 (w.e.f. 16-08-2019).
- Ins. by Act 25 of 2019, s. 4 (w.e.f. 16-08-2019).
- Subs. by Act 25 of 2019, s. 4, for "communal or sectarian violence" (w.e.f. 16-08-2019).
Section 5 POCSO in Simple Words
Section 5 POCSO defines when penetrative sexual assault becomes aggravated penetrative sexual assault. Under clauses (a), (b) and (c), the offence is aggravated when committed by a police officer (within station limits, station house premises, in the course of duties or otherwise, or where known or identified as a police officer), a member of the armed or security forces (within the deployment area, areas under command, in the course of duties or otherwise, or where known or identified as a member), or any public servant.
Clauses (d), (e), (f), (n), (o) and (p) cover offenders in institutional, familial, or trust roles: management or staff of a jail, remand home, protection home, observation home, or other statutory place of custody or care against an inmate (clause (d)); management or staff of a Government or private hospital in that hospital (clause (e)); management or staff of an educational or religious institution in that institution (clause (f)); a relative by blood, adoption, marriage, guardianship, foster care, domestic relationship with a parent, or someone living in a shared household with the victim (clause (n)); ownership, management, or staff of any institution providing services to the victim (clause (o)); or anyone in a position of trust or authority over the victim anywhere (clause (p)).
Clauses (g), (h), (i) and (j) address the manner and consequences of the act: gang penetrative sexual assault, where the Explanation says that when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of them is deemed to have committed it and is liable as if acting alone (clause (g)); using deadly weapons, fire, heated substance, or corrosive substance (clause (h)); causing grievous hurt, bodily harm and injury, or injury to the sexual organs of the victim (clause (i)); or an act under clause (j) that physically incapacitates the victim, causes mental illness as defined in Section 2(l) of the Mental Health Act, 1987, causes temporary or permanent impairment preventing regular tasks, results in pregnancy of a female victim, inflicts HIV or another life-threatening disease or infection causing temporary or permanent physical incapacity or mental illness, or causes the death of the victim.
Clauses (k), (l), (m), (q), (r), (s), (t) and (u) cover remaining aggravating factors: taking advantage of the victim's mental or physical disability (clause (k)); committing the offence more than once or repeatedly (clause (l)); where the victim is below 12 years of age (clause (m)); knowing the victim is pregnant (clause (q)); attempting to murder the victim (clause (r)); committing the offence during communal or sectarian violence, a natural calamity, or similar situations (clause (s)); having a prior conviction for any offence under POCSO or any sexual offence under any other law in force (clause (t)); or making the victim strip or parade naked in public (clause (u)).
Act 25 of 2019, from 16 August 2019, inserted sub-clause (iv) of clause (j), omitted the word "or" after sub-clauses (i) and (iii) of clause (j), and put "communal or sectarian violence or during any natural calamity or in similar situations" in place of "communal or sectarian violence" in clause (s).
When Section 5 POCSO Applies
- The accused committed penetrative sexual assault against a child.
- At least one of the 21 aggravating circumstances listed in clauses (a) through (u) of Section 5 POCSO is present.
- For gang penetrative sexual assault under clause (g), the act was committed by one or more persons of a group acting in furtherance of a common intention.
Example of Section 5 POCSO
When Section 5 POCSO Does Not Apply
- None of the circumstances in clauses (a) to (u) is present. The act is then penetrative sexual assault under Section 3 POCSO, punished under Section 4 POCSO.
- A hospital or school staff member under clause (e) or (f) when the act happens outside that hospital or institution, unless another clause applies, such as clause (p) for a person in a position of trust or authority, which covers acts anywhere.
FAQs on Section 5 POCSO
What is Section 5 POCSO?▼
Section 5 POCSO defines aggravated penetrative sexual assault by listing 21 aggravating circumstances in clauses (a) to (u). Section 5 POCSO defines the aggravated offence, while Section 6 POCSO prescribes its punishment.
What is the age threshold under Section 5(m) POCSO for an offence to become aggravated based on age alone?▼
Below 12 years of age. Under Section 5(m) POCSO, committing penetrative sexual assault on a child below 12 years of age is classified as aggravated penetrative sexual assault.
Does every member of a group have to personally commit the physical act to be liable under Section 5(g) POCSO?▼
No. Under the Explanation to Section 5(g) POCSO, when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of them is deemed to have committed gang penetrative sexual assault and is liable as if acting alone.
Does Section 5(a) POCSO apply to a police officer who is off duty?▼
Yes. Section 5(a)(iii) POCSO covers a police officer who commits the act in the course of duties or otherwise, and Section 5(a)(iv) POCSO covers any case where the offender is known or identified as a police officer.
Does repeating the offence against the same victim make it aggravated under Section 5 POCSO?▼
Yes. Under Section 5(l) POCSO, committing penetrative sexual assault on a child more than once or repeatedly constitutes aggravated penetrative sexual assault.
Have questions about Section 5 POCSO?
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Sources: Bare Act Text, Protection of Children from Sexual Offences Act, 2012 (India Code) ·