The Delhi High Court held that mere rubbing without penetration does not amount to penetrative sexual assault under the POCSO Act. Modifying the conviction, the Court reduced the doctor’s sentence from 10 years to 7 years.
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NEW DELHI: In a judgment clarifying the scope of penetrative sexual assault under the POCSO Act, the Delhi High Court partly allowed an appeal filed by a convicted accused and modified his conviction from Section 6 POCSO to Section 9(m) read with Section 10 POCSO. The Court held that mere rubbing of genitalia without penetration does not constitute penetrative sexual assault under Section 3 of the POCSO Act.
The judgment was delivered by Justice Chandrasekharan Sudha on 15 January 2026, arising out of an appeal against a conviction by the Special POCSO Court, Saket, Delhi.
Facts of the Case
The incident is alleged to have occurred on 28 June 2016 at around 3:45 PM. The victim, a 9-year-old minor girl, was sent by her mother to a nearby clinic run by the accused, who was a local doctor, to fetch medicine for her younger sister.
According to the prosecution (the State), the accused wrongfully confined the child inside his clinic and subjected her to sexual assault. Shortly thereafter, the victim’s mother entered the clinic and allegedly found the accused lying on top of the child.
Following this, a complaint was lodged and an FIR was registered under Sections 342 and 376 of the Indian Penal Code, 1860 and Section 6 of the POCSO Act, 2012.
Trial Court Proceedings
The Special Court constituted under the POCSO Act, after appreciating the evidence on record, found the accused guilty of committing aggravated penetrative sexual assault under Section 6 of the POCSO Act and wrongful confinement under Section 342 of the Indian Penal Code, 1860.
By judgment dated 17 January 2025, the trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years for the offence under Section 6 of the POCSO Act, along with a fine, and further sentenced him to rigorous imprisonment for six months for the offence under Section 342 IPC.
The trial court directed that both sentences shall run concurrently.
The accused challenged the conviction primarily on the ground that there were material contradictions and inconsistencies in the statements of the victim, which rendered the prosecution’s case unreliable. It was further contended that the doctor who conducted the medical examination of the victim was not examined before the trial court, and therefore the prosecution had improperly relied upon the Medico-Legal Certificate (MLC).
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The appellant also argued that even if the prosecution’s version was accepted in its entirety, the allegations at best disclosed the offence of sexual assault under Section 7 of the POCSO Act, and did not satisfy the statutory requirements of penetrative sexual assault under Section 3 of the POCSO Act.
Legal Issues Before the High Court
- Whether the MLC was admissible despite the doctor not being examined
- Whether contradictions in the Section 161 and 164 statements were legally proved
- Whether the act alleged constituted penetrative sexual assault under Section 3 POCSO
- Appropriate sentencing provision under the POCSO Act
High Court’s Observation and Findings
Admissibility of Medical Evidence
The High Court upheld the admissibility of the Medico-Legal Certificate by relying upon Section 32(2) of the Indian Evidence Act, 1872, which makes statements made in the discharge of professional duty relevant when the maker cannot be examined.
The Court further invoked Sections 47 and 67 of the Evidence Act to hold that the handwriting and signature of the doctor could be proved through a person acquainted with them.
In support of this position, reliance was placed on judicial precedents, including Prithi Chand v. State of Himachal Pradesh and Kochu v. State of Kerala, wherein courts have recognised the admissibility of medical documents when the authoring doctor is unavailable, subject to proper proof of handwriting and signature.
The Court held that since the doctor was untraceable and his handwriting and signature were proved by a competent witness, the MLC was legally proved.
Contradictions in Victim’s Testimony
The Court reiterated the settled position of law that statements recorded under Section 161 of the CrPC cannot be used for corroboration of a witness’s testimony. It further emphasised that contradictions must be proved strictly in accordance with the procedure prescribed under Section 145 of the Indian Evidence Act, 1872, by duly confronting the witness with the earlier statement.
The Court also clarified that omissions may amount to contradictions only when they are material in nature, and such omissions must be properly put to the witness and proved in the manner recognised by law.
The Court found that the defence failed to follow the legally prescribed procedure for proving contradictions.
No Penetrative Sexual Assault
After examining the FIR, the statement of the victim recorded under Section 164 of the CrPC, the oral testimonies of PW1 and PW7, and the medical evidence on record, the Court held that there was no consistent or clear allegation of penile penetration.
The allegations, when read as a whole, indicated rubbing of genitalia rather than penetration, and such conduct did not fall within clauses (a) to (d) of Section 3 of the POCSO Act.
Consequently, the Court concluded that the offence of penetrative sexual assault or aggravated penetrative sexual assault under Sections 3 and 5 of the POCSO Act was not made out, while the facts disclosed the commission of sexual assault under Section 7, amounting to aggravated sexual assault under Section 9(m) of the Act.
Since the victim was below 12 years, the offence amounted to Aggravated Sexual Assault under Section 9(m), punishable under Section 10 POCSO.
Modified Sentence:
- 7 years rigorous imprisonment (maximum under Section 10)
- Conviction and sentence under Section 342 IPC confirmed
The Court observed that the accused, being a doctor in a position of trust, deserved no leniency.
The Delhi High Court directed the Delhi State Legal Services Authority (DSLSA) to disburse the victim compensation awarded by the trial court within two months.
Final Outcome
- Appeal partly allowed
- Conviction under Section 6 POCSO set aside
- Conviction modified to Section 9(m) read with Section 10 POCSO
- Sentence reduced from 10 years to 7 years RI
- Other convictions and fines upheld
Case Title:
Madhu Shudhan Dutto v. State Govt. of NCT of Delhi
CRL.A. 649/2025 & CRL.M. (BAIL) 1046/2025
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