Genital touching without proven penetration attracts POCSO Section 7, not Section 6.

The appellant was convicted by the Special Judge, West Tripura, under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and Sections 449 and 342 of the Indian Penal Code, 1860 (IPC), arising from an alleged sexual assault on a seven-year-old child.

The prosecution case was that the appellant entered the child’s home while she was alone and touched her private parts; the incident was disclosed to her mother three days later, and the FIR was lodged on 11 May 2021.

The child testified at trial, and her statement recorded by a Magistrate during investigation was also proved.

The appellant challenged the conviction, arguing, among other things, that the evidence was unreliable, the FIR was delayed, and there was no medical evidence.

Whether the child’s testimony and the other evidence were sufficient to sustain a finding of sexual assault despite the appellant’s challenges concerning the testimony, delay in lodging the FIR, and absence of medical evidence.

Whether the proved conduct amounted to a penetrative sexual offence punishable under Section 6 of the POCSO Act, or instead to sexual assault under Section 7, punishable under Section 8.

Section 7 of the POCSO Act defines sexual assault as sexual-intent physical contact with a child involving specified body parts, or another act involving physical contact, where there is no penetration; Section 8 prescribes the punishment for that offence.

The Court distinguished that offence from the penetrative sexual offence charged under Section 6, concluding that the evidence did not establish penetration.

It also directed that the appellant receive set-off for detention already undergone under Section 428 of the Code of Criminal Procedure, 1973, corresponding to Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Court accepted the child’s evidence that the appellant removed clothing and touched his private part to hers, and noted that her account was also recorded before a Magistrate during the investigation.

The alleged contradiction put to the child in cross-examination was not confirmed by the investigating officer; the Court therefore found no basis to extend the appellant the benefit of that alleged discrepancy.

The Court nevertheless assessed the nature of the proved conduct separately from the child’s identification of the appellant: it held that the prosecution had not established penetration, so Section 6 was not made out.

The described physical contact, however, fell within Section 7.

The Court modified the conviction, finding the appellant guilty of sexual assault under Section 7 of the POCSO Act and sentencing him under Section 8 to five years’ rigorous imprisonment and a fine of ₹10,000, with four months’ rigorous imprisonment in default.

It set off the period of detention already undergone and directed that any fine realised be deposited with the trial court for payment to the victim’s father for the victim’s welfare.

The convictions and sentences for the other offences were interfered with and modified.