Delhi High Court Clarifies Definition of “Penetrative” Sexual Assault under POCSO Act

LI Network

Published on: November 08, 2023 at 11:44 IST

The Delhi High Court, in a recent ruling, clarified the definition of “penetrative” sexual assault under the Protection of Children from Sexual Offences Act (POCSO Act).

The Court held that a mere touch cannot be considered as “penetrative” sexual assault, as defined under Section 3(c) of the Act.

Justice Amit Bansal explained that “touch” constitutes a separate offense under the POCSO Act, distinct from “manipulation” leading to penetration.

In a specific case, the Court convicted a man for aggravated sexual assault on a 6-year-old girl but not for “penetrative” sexual assault.

The Court’s judgment emphasized that a simple touch cannot be equated to manipulation under Section 3(c) of the POCSO Act. Acknowledging that “touch” is a distinct offense under Section 7 of the Act, the Court rejected the argument that a touch should be considered manipulation, as it would render Section 7 redundant.

Section 3(c) of the POCSO Act defines “penetrative sexual assault” as the manipulation of any part of a child’s body to cause penetration into the vagina, urethra, anus, or any other body part or making the child do so with the offender.

The case in question revolved around a man who had been convicted of touching the anal region of a 6-year-old girl while she attended tuition classes conducted by his brother. Subsequently, the girl complained of pain, leading her parents to file a criminal complaint.

The accused challenged his conviction and the 10-year jail sentence for the rape of the girl. The trial court had convicted him for rape and aggravated penetrative sexual assault under Section 6 of the POCSO Act, 2012. The High Court, however, identified inconsistencies in the evidence, particularly in the victim’s statements regarding the incident, which cast doubt on the penetrative sexual assault charge.

The Court observed that the victim’s statements contained material improvements regarding the accused’s actions during the incident, ranging from mere touch to more serious allegations. While acknowledging the minor inconsistencies expected in the statements of a six-year-old, the Court determined that the contradictions were not minor or immaterial.

Despite this, the Court found that the charge of aggravated sexual assault under Section 10 was conclusively proven against the accused. The judgment was modified, and the accused was convicted under Section 10 of the POCSO Act instead of Section 6, leading to a reduction in the sentence to five years of rigorous imprisonment. The fine imposed by the trial court was upheld.

This ruling from the Delhi High Court offers important clarity on the distinction between “touch” and “penetrative” sexual assault under the POCSO Act.

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