Simple Act of Touch Not Manipulation for Offence of Penetrative Sexual Assault Under POCSO: Delhi HC

The Delhi High Court observed on Monday that a simple act of touch cannot be considered manipulation for the offence of penetrative sexual assault under Section 3(c) of the Protection of Children from Sexual Offences (POCSO) Act.

The bench of Justice Amit Bansal said “touch” was a separate offence under the POCSO Act as he refused to uphold the conviction of a man for “aggravated penetrative sexual assault” for touching the private body part of a six-year-old girl student of his brother, a tuition teacher.

The judge, however, refused to interfere with the conviction and five-year jail term awarded to the man for the offence of “aggravated sexual assault”.

The judge said under Section 7 of the POCSO Act, “touch” is a separate offence and if the submission raised by the APP that a touch would amount to manipulation is accepted, then Section 7 of the Act would be rendered redundant. “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”, the court said.

The single-judge bench was dealing with an appeal of an accused convicted for raping a minor girl under Section 376, Section 6 of POCSO Act and sentenced to rigorous imprisonment for a period of 10 years.

The court opined that the offence under Section 6 of the POCSO Act has not been proved against the appellant beyond all reasonable doubt, but the offence under Section 10 of the POCSO Act is proved beyond all reasonable doubt against the appellant.

It said, “Merely because there have been inconsistencies in the statement of the child victim, it cannot be said that her testimony is completely unreliable and should be disregarded in its entirety”.

“It is to be noted that the child victim has consistently stated in her testimony as well as various previous statements that she was touched in the anal region by the appellant, and the touch caused her pain,” the court said.

The court highlighted the absence of independent witnesses or medical evidence corroborating the prosecution’s case and said, “There is no dispute with the proposition that a conviction can be made only on the basis of the testimony of the prosecutrix without any independent corroboration. However, in such a case, the testimony of the prosecutrix has to be of a sterling quality”.

Accordingly, the court allowed the appeal partially and modified the earlier judgment of the high court to the extent that instead of Section 6 of the POCSO Act, the appellant stands convicted under Section 10 of the POCSO Act.

Section 3(c) of the POCSO Act states that 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.