Aggravated penetrative sexual assault
Section 5 of the Protection of Children from Sexual Offences Act, 2012 deals with aggravated penetrative sexual assault. 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; The Act came into force on 14 Nov 2012.
(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; 1***
(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; 1***
2[(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 3[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.
Section 5, The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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State of U.P. v. Sonu Kushwaha
Court's Decision & Legal Precedent
Judgement of Main Case order-6.pdf 2023-07-05 DATE-CHECK FP (2016-03-22/26 FIR/incident dates; body ends New Delhi; July 5, 2023; Crl.A. 1633/2023 Oka/Bindal REPORTABLE). Isolate: penis-in-mouth of a child below 12 is penetrative sexual assault under s.3(a) and aggravated under s.5(m), punishable under s.6; ‘shall not be less than’ leaves no discretion to impose below the statutory minimum. High Court erred in substituting s.4. Attach 5 and 6 only — do not pad 3/4 (Nawabuddin isolates s.3(b)).
On this section: POCSO s.5(m): penetrative sexual assault on a child below twelve is aggravated penetrative sexual assault; the High Court cannot recast it as simple s.4 penetrative assault (Sonu Kushwaha). Do not pad 3/4.
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Naveen @ Ajay vs The State of Madhya Pradesh
Court's Decision & Legal Precedent
A criminal trial for serious offences including rape and murder cannot be conducted in a hasty manner over 15 days without providing adequate time to the legal aid counsel to prepare the defence. The principle of fair trial, which is a fundamental right under the Constitution, requires that the accused be afforded a real and meaningful opportunity to defend himself through competent counsel with sufficient preparation time. The trial court has a duty to ensure compliance with fair trial principles by granting adequate time to defence counsel, which should normally be a minimum of 7 days but may be more depending on circumstances. Forensic evidence including DNA reports must be properly proved through examination of expert witnesses who prepared the reports, and the accused must be given opportunity to cross-examine such experts. A trial conducted in violation of these principles is void and the conviction and sentence must be set aside with the matter remitted for de novo trial.
On this section: Provisions under which appellant was convicted for sexual offences against child; Court acknowledged these provisions but found conviction vitiated by procedural defects
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Kuldeep Kumar vs Union Territory of J&K
Court's Decision & Legal Precedent
Even in cases involving serious offences like sexual abuse of children, the principle that bail is the rule and jail is the exception applies. Bail cannot be withheld as punishment. An accused person at the stage of accusation, who has already suffered substantial incarceration, and whose case shows procedural delays and evidentiary gaps raising doubts about the genuineness of the prosecution, is entitled to bail. Concerns about witness tampering can be adequately addressed through stringent bail conditions rather than continued detention.
On this section: Offences relating to sexual abuse of children; applied in conjunction with Section 376 IPC
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Sathish vs The State of Tamil Nadu
Court's Decision & Legal Precedent
When an accused in a POCSO Act case has made out arguable points in his appeal, and the appeal cannot be taken up for final hearing in the near future, the High Court may suspend the substantive sentence of imprisonment pending disposal of the appeal, provided the accused is enlarged on bail with appropriate conditions to ensure his presence and compliance with court orders.
On this section: Petitioner was charged and convicted for sexual abuse of a child (victim aged 17 years). The court applied these sections to establish the offense of sexual abuse of a minor.
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Anand Raj vs The Inspector of Police
Court's Decision & Legal Precedent
In cases involving sexual offences against minors under POCSO Act, bail may be granted when: (a) the victim's own statement recorded under Section 164 Cr.P.C does not corroborate the prosecution's allegations; (b) the accused has undergone substantial pre-trial custody; and (c) the investigation is nearing completion. The absence of incriminating evidence in the victim's statement is a significant factor in bail consideration, even in serious offences like POCSO violations.
On this section: Sexual offence charges against minor - specific provisions under POCSO Act applied to the case
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Pintu Kathat and Anr. vs State
Court's Decision & Legal Precedent
In cases involving sexual assault of minor children where the victim is pregnant and charges include rape, robbery, and offences under the Protection of Children from Sexual Offences Act, the gravity of offences and the vulnerability of the victim are paramount considerations that justify denial of bail, and no grounds exist to enlarge the accused on bail.
On this section: Offence under POCSO Act - charge against the accused petitioners for sexual assault of a minor
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Thereafter, in due course, a charge-sheet was filed before the Special Court for committing offences under Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of Protection of Children From Sexual Offences Act, 2012 (POCSO Act). In turn, matter was committed to the Special Court. In the said Court, the appellant abjured the guilt and prayed to conduct a full-fledged trial. The appellant stated that he does not wish to lead evidence in defence. The Court below framed …
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… Thereafter, in due course, a charge-sheet was filed before the Special Court for committing offences under Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of Protection of Children From Sexual Offences Act, 2012 (POCSO Act). In turn, matter was committed to the Special Court. In the said Court, the appellant abjured the guilt and prayed to conduct a full-fledged trial. The appellant stated that he does not wish to lead evidence in defence. The Court below framed …
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… against the judgment of the Additional Sessions Court No.I (Special Court), Pathanamthitta in S.C.No.314/2017 dated 27.2.2020, as per which, the accused persons – father of the victim and his friend - were found not guilty of offences under Section 376, read with Section 34 of the Penal Code and Section 4, read with Sections 3, 6 & 5 of the Protection of Children from Sexual Offences (POCSO) Act. The prosecution case:- 3. The accused persons committed rape, sexual assault and penetrative sexual assault on the minor daughter of the first accused several times during December, 2015 and February, 2016 by caressing her breasts, fingering her …
Made under this section, and citing it
1 instrument names this provision in its title or its text without being made under it.
Questions about Section 5
What have the courts held on Section 5 of the Protection of Children from Sexual Offences Act?
State of U.P. v. Sonu Kushwaha (05 Jul 2023) is the leading judgment on this section among those set out below: POCSO s.5(m): penetrative sexual assault on a child below twelve is aggravated penetrative sexual assault; the High Court cannot recast it as simple s.4 penetrative assault (Sonu Kushwaha). Do not pad 3/4. Another 5 judgments on this section are set out below, 2 of them from the Supreme Court. They run from 2015 to 2025.
How do I find court cases under Section 5 of the Protection of Children from Sexual Offences Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Pocso Act 5, section 5 Pocso Act, section 5 of the Protection of Children from Sexual Offences Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 6 reported judgments on this section are set out on this page, beginning with State of U.P. v. Sonu Kushwaha (05 Jul 2023).
What should I read with Section 5 of the Protection of Children from Sexual Offences Act, and has it changed?
4 other provisions in this corpus refer back to it. One instrument names it without being made under it, most recently The Protection of Children from Sexual Offences Rules, 2012 (2012).
When did Section 5 of the Protection of Children from Sexual Offences Act come into force?
Section 5 of the Protection of Children from Sexual Offences Act, cited as Pocso Act 5, came into force on 14 Nov 2012, having been enacted on 19 Jun 2012. It is in force as at the date shown on this page.
Other sections of this Act
- 9. Aggravated sexual assault813 words
- 33. Procedure and powers of Special Court395 words
- 2. Definitions340 words
- 19. Reporting of offences338 words
- 45. Power to make rules323 words
- 15. Punishment for storage of pornographic material involving child233 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.