Delhi High Court on Monday held that mere touch cannot be termed as “penetrative” sexual assault, defined under Section 3(c) of the POCSO (Protection of Children from Sexual Offences) Act.
A Bench of Justice Amit Bansal has further explained that mere touch cannot be interpreted as “manipulation” of a body part so as to amount penetration for penetrative sexual assault.
The Court while convicting a man for committing aggravated sexual assault on a 6 year old girl, but not “penetrative” sexual assault added that ‘Touch’ is a separate offence.
The Court said that a simple act of touch cannot be considered as manipulation under Section 3(c) of the Act. It is to be noted that under Section 7 of the POCSO Act, ‘touch’ is a separate offence. If the submission raised by the learned APP that the touch amounts to manipulation is accepted then Section 7 of the Act would be rendered redundant.
According to Section 3(c) of the POCSO Act, a person is said to commit the offence of “penetrative sexual assault” if he manipulates either any part of the child’s body which cause penetration into the vagina, urethra, anus, or any other part of the body or makes the child to do the same with himself or with any other person.
The Court was hearing the plea of a man who challenged his conviction and 10 year of imprisonment for the rape of 6-year old girl. The accused was purported to have touched the anal region of the victim when she went to attend tution classes which was conducted by the accused’s brother. Later, the girl complained of her pain to her parents when sitting down and disclosed the incident before them, who then filed a criminal complaint.
In 2020, a trial court convicted the accused for the offence of rape and aggravated penetrative sexual assault under Section 12 of POCSO Act. This judgement was further challenged by the accused before the High Court.
The High Court some inconsistencies in the evidences which cast doubt that whether the accused had committed penetrative sexual assault under Section 6 of the POCSO Act. The victim’s statement included material improvements regarding the incident.
The Court in her statement observed that during her statement was being recorded under Section 161 of the CrPC, the victim has said that the appellant has touched her anal region through her clothes with his finger. She further stated that the appellant had inserted his whole finger inside her anal region and threaten her by holding her throat.
The Court further pointed out that the victim eventually blamed appellant that he had cut her anal region with his fingernails whereas in earlier statements, she has mentioned that the accused had touched her anal region through his finger over her clothes.
The Court found that the charge under Section 10 of aggravated sexual assault was proven against the accused without any reasonable doubt.
The Court held that thre is nothing in this present case which proves that there was any manipulation on any part of the body of victim which amounted penetration. Therefore, the appeal is allowed partially and the impunged order of trial court was modified to such extent that despite of Section 6 of the POCSO Act, the appellant stands convicted under Section 10 of the said Act.
As a consequence, the Court reduced the accused sentence from 10 years to 5 years of rigorous imprisonment for the offence of aggravated sexual assault under Section 10 of POCSO Act. The fine of Rs. 5000 imposed by trial court was also upheld.
The Acused(petitioner) was represented by Advocate Rajive Maini, Shriya Maini, Aparna Kaushik and Neeshu Chandpuniy and the State was Represented by Additional Public Prosecutor Ritesh Kumar Bahri.
Written by:- Dolly Singh Gehlot, College:- BM Law College, Jodhpur, Semester:- 5th an intern under Legal Vidhiya
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