Non-penetrative sexual assault on a child below 12 constitutes aggravated sexual assault under POCSO.

The prosecution alleged that the appellant, who was staying near the victim’s home, took the victim—then aged about seven years and seven months—to a deserted house on several occasions and sexually assaulted her.

The victim’s date of birth was supported by school records, and the defence did not seriously dispute her age.

The trial court convicted the appellant under Sections 376AB IPC and 6 of the POCSO Act, and Section 3(2)(v) of the SC/ST (POA) Act; it acquitted him under Section 366 IPC.

On appeal, the High Court considered whether the evidence proved penetrative sexual assault and whether the convictions could otherwise be sustained.

1. Whether the victim’s testimony and medical evidence proved penetrative sexual assault under Section 375 IPC and Section 3 of the POCSO Act, supporting conviction under Section 376AB IPC and Section 6 of the POCSO Act

2. Whether the evidence, even if insufficient to prove penetration, established aggravated sexual assault under Sections 9(l) and 9(m) of the POCSO Act, punishable under Section 10

3. Whether the conviction under Section 3(2)(v) of the SC/ST (POA) Act could be sustained in light of the offence ultimately proved

Section 375 IPC and Section 3 of the POCSO Act define rape and penetrative sexual assault, respectively, by reference to specified forms of penetration; Section 376AB IPC and Section 6 of the POCSO Act prescribe punishment for the relevant aggravated offences.

Sections 9 and 10 of the POCSO Act provide for aggravated sexual assault and its punishment.

Section 354 IPC addresses assault or criminal force with intent to outrage a woman’s modesty.

Section 3(2)(v) of the SC/ST (POA) Act was considered in connection with the punishment prescribed for the proved offence.

The trial court had also relied on Section 29 of the POCSO Act, which provides for a presumption in prosecutions for specified POCSO offences, and on Ganeshan v. State, concerning reliance on a credible victim’s testimony.

The High Court found that the victim described being taken to a deserted house, having her clothing removed, and the accused pressing her private part with his hand; her evidence did not establish penetration.

The medical evidence recorded no external injuries, an intact hymen, no signs suggestive of struggle, and no evidence of recent sexual intercourse; the doctor also stated that discharge could arise from causes other than sexual intercourse.

The Court therefore held that penetrative sexual assault was not proved and that the evidence was also insufficient to establish an attempt to commit rape.

It nevertheless found, on the cumulative evidence, that the conduct amounted to aggravated sexual assault on a child below 12 years under Sections 9(l) and 9(m) of the POCSO Act.

Because the convictions for penetration-based offences were not sustainable, and the offence ultimately proved did not support the trial court’s basis for applying Section 3(2)(v) of the SC/ST (POA) Act, that conviction was also set aside.

The High Court set aside the convictions under Sections 376AB IPC and 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act, and convicted the appellant under Sections 9(l) and 9(m), punishable under Section 10, of the POCSO Act.

It sentenced him to five years’ rigorous imprisonment and a fine of ₹1,00,000, with one year’s simple imprisonment in default; the fine, if deposited, was to be paid to the victim as compensation within 30 days.

The trial court’s separate victim-compensation award was left undisturbed.