Delhi HC Reduces Neighbour’s POCSO Sentence From 20 To 5 Years, Finding Sexual Touching Proved But Finger Penetration Not

The appellant was convicted by the Trial Court under Sections 376AB, 354A and 506 IPC and Sections 6 and 10 of the POCSO Act for allegedly sexually assaulting his young neighbour. The prosecution alleged that he inserted a finger into the child’s private part, kissed her and threatened her against disclosure.

The child’s birth certificate established that she was below twelve years old at the time of the alleged incident.

On appeal, the appellant challenged, among other matters, whether the evidence proved penetration. The High Court partly allowed the appeal, setting aside the convictions under Section 376AB IPC and Section 6 of the POCSO Act while maintaining the remaining convictions.

Section 3(b) of the POCSO Act and Section 375(b) IPC require proof of insertion, to any extent, of an object or body part into the specified private parts; touching without penetration falls under Section 7 of the POCSO Act, and where the child is below twelve years, the offence is aggravated under Sections 5(m) or 9(m), respectively, and punishable under Sections 6 or 10.

Section 29 of the POCSO Act creates a rebuttable presumption only after the foundational facts of the particular offence have been established.

The Court also relied on Attorney General for India v. Satish, which recognises that physical contact with sexual intent may constitute sexual assault, and Phool Singh v. State of Madhya Pradesh, which permits conviction on reliable prosecutrix testimony while preserving the requirement that the offence’s ingredients be proved.

It applied the distinction between touching and penetration reflected in Ram Preet v. State, Jeetu Ranjeet v. State (NCT of Delhi) and Hamid Khan v. State (NCT of Delhi).

Under Section 42 of the POCSO Act, where the same act constitutes an offence under both that Act and specified IPC provisions, punishment is imposed only under the law providing the greater punishment.

The child’s testimony before the Trial Court identified the appellant and described him touching her private part and causing pain. However, her trial testimony principally described touching; her answer that the nail had touched “inside” did not clearly establish insertion. The earlier statement under Section 161 Cr.P.C. alleging insertion could not, by itself, supply the missing proof where the substantive testimony did not establish that ingredient.

The medical examination disclosed no external injury, no internal examination was conducted because the parents declined consent, and the forensic evidence yielded no incriminating biological material; these circumstances did not disprove assault but did not establish penetration.

The Court therefore found sexual touching with sexual intent proved, and, given the child’s age, held that the conduct constituted aggravated sexual assault under Section 9(m). The statutory presumption could not cure the failure to prove the foundational fact of penetration.

The variations concerning the location of the incident and the short interval before the FIR did not undermine the finding of sexual touching.

The conviction and five-year rigorous-imprisonment sentence under Section 10 of the POCSO Act were upheld; the convictions under Sections 354A and 506(1) IPC were also maintained, subject to Section 42 of the POCSO Act.

The sentences were to run concurrently, with the benefit of Section 428 Cr.P.C.; the compensation directions remained undisturbed.

The Jail Superintendent was directed to verify the appellant’s updated custody period and release him if he had completed the maintained substantive sentence, subject to payment of any outstanding fine or service of the default sentence and the absence of any other custody requirement.