A mere touch cannot be termed “penetrative” sexual assault, as defined under Section 3(c) of the Protection of Children from Sexual Offences Act (POCSO Act), the Delhi High Court held on Monday.
A Bench of Justice Amit Bansal explained that a mere touch cannot be interpreted to mean the “manipulation” of a body part so as to cause penetration for penetrative sexual assault.
‘Touch’ is a separate offence, the Court added while convicting a man for committing aggravated sexual assault on a 6-year-old girl, but not of “penetrative” sexual assault.
“A simple act of touch cannot be considered to be manipulation under Section 3(c) of the Act. It is relevant to note that under Section 7 of the POCSO Act, ‘touch’ is a separate offence. If the submission raised by the learned APP that a touch would amount to manipulation is accepted, then Section 7 of the Act would be rendered redundant,” the Court said.
As per Section 3(c) of the POCSO Act, a person is said to commit “penetrative sexual assault” if he manipulates any part of the child’s body so as to cause penetration into the vagina, urethra, anus, or any other body part or makes the child to do so with him or any other person.
The Court was hearing a plea moved by a man who had challenged his conviction and 10-year-jail sentence for the rape of a 6-year-old girl.
The accused man was alleged to have touched the anal part of the victim when she went to attend tuition classes conducted by his brother. The girl later complained of pain when sitting down and disclosed the incident to her parents, who then filed a criminal complaint.
In 2020, a trial court convicted the accused for rape and aggravated penetrative sexual assault under Section 6 of the POCSO Act, 2012. This verdict was challenged by the accused before the High Court.
The High Court found that there were several inconsistencies in the evidence, which cast doubt on whether the accused had committed penetrative sexual assault under Section 6 of the POCSO Act. This included material improvements in the victim’s statements regarding the incident.
“In her statement during the MLC as well as her statement recorded under Section 161 of the CrPC, the victim has consistently stated that the appellant touched her anal region with his finger through her clothes. However, in her statement under Section 164 of the CrPC, she has stated that the appellant inserted his whole finger inside her anal region and also held her throat and threatened her,” the Court observed.
The Court further pointed out that the victim eventually alleged that the accused man had cut her anal region with his fingernails. However, in earlier statements, she only mentioned that the accused had touched her over her clothes.
“It cannot be disregarded that the victim at time of incident was a child of six years and therefore, some leeway has to be provided for minor inconsistencies in her statement. However, from the analysis above, it cannot be stated that the contradictions in the statements of the victim are minor or immaterial,” the Court said.
Nevertheless, the Court found that the charge of aggravated sexual assault under Section 10 was proven against the accused beyond any reasonable doubt.
“There is nothing in the present case to show that there was any manipulation on any part of the body of the victim so as to cause penetration…Therefore, the appeal is partially allowed and the impugned judgment is modified to the extent that instead of Section 6 of the POCSO Act, the appellant stands convicted under Section 10 of the POCSO Act,” the Court held.
As a result, the Court reduced the accused man’s sentence to 5 years of rigorous imprisonment for the offence of aggravated sexual assault under Section 10 of the POCSO Act. The ₹5,000 fine imposed by the trial court was also upheld.
Advocates Rajive Maini, Shriya Maini, Aparna Kaushik and Neeshu Chandpuniy appeared for petitioner (accused).
Additional Public Prosecutor Ritesh Kumar Bahri appeared for State.
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