§ The four acts common to both provisions (in substance)

Clause (a): penetration by the penis, to any extent, of the specified parts of the victim, or making the victim do so with the offender or any other person.

Clause (b): insertion, to any extent, of any object or a part of the body other than the penis into the specified parts, or making the victim do so.

Clause (c): manipulation of any part of the body of the victim so as to cause penetration, or making the victim do so.

Clause (d): application of the mouth to the specified parts, or making the victim do so.

The words to any extent mean that the slightest penetration completes the offence. The definition is deliberately wide, and it is identical in structure in both statutes.

The victim

Any CHILD below eighteen, of any sex

A WOMAN

The offender

A person. Clause (a) by its nature involves a male, but clauses (b) to (d) may be committed by a person of any sex

A MAN

The additional ingredient

None beyond the act and the age of the victim

One of SEVEN circumstances: against her will; without her consent; consent by fear; consent by impersonation of a husband; consent while of unsound mind or intoxicated; with or without consent when she is under eighteen; when she cannot communicate consent

Consent

IRRELEVANT

CENTRAL, save in the sixth circumstance, where she is under eighteen

Marital exception

NONE

Exception 2: intercourse by a man with his own wife, NOT UNDER EIGHTEEN, is not rape

Medical exception

Not expressly stated

Exception 1: a medical procedure or intervention is not rape

Basic punishment

Section 4: not less than ten years, extending to life, and fine; below sixteen, not less than twenty years, extending to life

Section 64: not less than ten years, extending to life, and fine

Aggravated form

Section 5, punishable under Section 6: twenty years to the remainder of natural life, or death

Sections 64(2), 65 and 70: aggravated rape, rape of a woman under sixteen or twelve, and gang rape

Presumption

Section 29: presumption of the offence itself, once the foundational facts are proved

Section 120 of the BSA: presumption as to absence of consent in certain prosecutions

The court

The Special Court under Section 28

The Court of Session

§ The offender under Section 3

Section 3 uses the word he, but by Section 13 of the General Clauses Act, 1897, words importing the masculine gender include females, unless there is anything repugnant in the subject or context.

Clauses (b), (c) and (d) describe acts that a person of any sex can commit, and the courts have held that a woman may be prosecuted under Section 3 for such acts.

The BNS offence is expressly confined to a man, so this is a real point of difference, and a further reason why the POCSO Act is the broader of the two.

§ A girl below eighteen

• The act is rape under Section 63 of the BNS, by the sixth circumstance, and penetrative sexual assault under Section 3 of the POCSO Act.

• The trial is before the Special Court, which by Section 28(2) may also try any other offence with which the accused may be charged at the same trial.

• Section 42 of the POCSO Act resolves the punishment: where an act is an offence under the POCSO Act and also under the specified provisions of the general penal law, the offender is liable to the punishment greater in degree.

• Only one sentence is imposed for the one act. Section 42 selects the heavier punishment; it does not add the two together.

📖 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384

The Supreme Court held that the testimony of a victim of a sexual offence, if found reliable and trustworthy, is sufficient to found a conviction without corroboration, that her evidence stands on a higher footing than that of an injured witness, and that minor discrepancies should not be allowed to discredit an otherwise credible account. It also directed that such trials be conducted in camera and that courts show sensitivity in dealing with the victim.

Rule: corroboration is a matter of prudence, not law. The principle applies with equal force to a prosecution under the BNS and under the POCSO Act.

📖 Ganesan v. State, (2020) 10 SCC 573

In a prosecution under the POCSO Act, the Supreme Court held that the sole testimony of the child victim, if found to be of sterling quality and trustworthy, is sufficient to convict, and that the absence of corroborating medical or other evidence is not by itself fatal.

Rule: under POCSO, as under the general law, a credible child witness can carry the prosecution alone, and the Section 29 presumption then operates once the foundational facts are established.