In a notable legal pronouncement, the Delhi High Court, on Monday, underscored that a mere touch cannot be categorized as “penetrative” sexual assault, as outlined in Section 3(c) of the Protection of Children from Sexual Offences Act (POCSO Act).
Justice Amit Bansal, presiding over the bench, elucidated that a mere touch does not equate to the “manipulation” of a body part to facilitate penetration, a requisite element for classifying an offense as penetrative sexual assault.
The court emphasized that ‘touch’ constitutes a separate offense, ultimately convicting an individual for aggravated sexual assault against a 6-year-old girl but not for “penetrative” sexual assault.
The court asserted, “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 offense. 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.”
Under Section 3(c) of the POCSO Act, an individual is deemed to have committed “penetrative sexual assault” if they manipulate any part of a child’s body to cause penetration into the vagina, urethra, anus, or any other body part or compel the child to do so with them or another person.
This legal clarification arose in the context of a case where a man challenged his conviction and a 10-year jail sentence for allegedly raping a 6-year-old girl. The accused was accused of touching the victim’s anal region during tuition classes conducted by his brother, resulting in the child experiencing discomfort. Subsequently, the child disclosed the incident to her parents, who lodged a criminal complaint.
In 2020, a trial court had convicted the accused of rape and aggravated penetrative sexual assault under Section 6 of the POCSO Act, 2012. The accused appealed this verdict to the High Court.
The High Court identified several inconsistencies in the evidence, particularly with regard to whether the accused had committed penetrative sexual assault under Section 6 of the POCSO Act. These inconsistencies included variations in the victim’s statements regarding the incident.
The Court observed, “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.”
Furthermore, the victim eventually alleged that the accused had scratched her anal region with his fingernails. However, in earlier statements, she had only mentioned that the accused had touched her over her clothing.
The Court acknowledged the minor inconsistencies in the child’s statements, given her age of six years at the time of the incident. However, it concluded that the contradictions were not insignificant.
Nonetheless, the Court found that the charge of aggravated sexual assault under Section 10 was conclusively established against the accused.
“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 ruled.
Consequently, the accused’s sentence was reduced to 5 years of rigorous imprisonment for the offense of aggravated sexual assault under Section 10 of the POCSO Act. The ₹5,000 fine imposed by the trial court was upheld.
Advocates Rajive Maini, Shriya Maini, Aparna Kaushik, and Neeshu Chandpuniy represented the petitioner (accused), while Additional Public Prosecutor Ritesh Kumar Bahri appeared for the State.
