In a pivotal judgment, the Delhi High Court has clarified the interpretation of ‘penetrative sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act, ruling that a mere touch does not constitute manipulation leading to such an offense. Justice Amit Bansal, presiding over the case, made a distinction between simple touch and penetrative assault as defined under the Act.
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Justice Bansal stated,
“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’s decision came while hearing an appeal by a man convicted in 2020 for raping a six-year-old girl, sentenced to 10 years under Section 376 (rape) of the Indian Penal Code and Section 6 (aggravated penetrative sexual assault) of the POCSO Act. The High Court modified the conviction to Section 10 of the POCSO Act, which deals with aggravated sexual assault, sentencing the appellant to five years of rigorous imprisonment and retaining the fine of Rs. 5,000 imposed by the trial court.
The judgment was based on the inconsistencies found in the victim’s statements. Initially, the victim had consistently stated that the appellant touched her anal region with his finger through her clothes. However, later statements claimed that the appellant inserted his finger inside her anal region and threatened her. Justice Bansal noted,
“It cannot be disregarded that the victim at the time of the 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 underscored the absence of independent witnesses or medical evidence to corroborate the prosecution’s case. It was observed that while a conviction can rest solely on the testimony of the prosecutrix, the testimony must be of sterling quality to do so.
“A perusal of Section 3(c) of the POCSO Act shows that for an act to be a penetrative sexual assault, the accused has to manipulate any part of the body of the child so as to cause penetration. 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,”
Justice Bansal elucidated.
The court’s ruling is a significant interpretation of the POCSO Act, delineating the boundaries between different categories of sexual offenses against children and emphasizing the need for precision in legal definitions to ensure justice.
