Rubbing Private Parts Without Penetration Constitutes Attempted Aggravated Penetrative Sexual Assault Under POCSO Act

The Appellant was convicted by the trial court under Section 6 of the POCSO Act and Section 376(2)(i) of the IPC for the alleged aggravated penetrative sexual assault of a three-year-old girl.

The prosecution alleged that on October 30, 2014, the Appellant took the victim to his dwelling, undressed her, and rubbed his private parts against hers.

During the trial, the victim (PW1) and her mother (PW2) testified to these events, and an FSL report confirmed the presence of the Appellant's DNA on the victim's clothing.

The Appellant maintained his innocence, claiming false implication due to a monetary dispute and asserting he was

He appealed the trial court's judgment dated May 5, 2016, which had sentenced him to 20 years of rigorous imprisonment.

1. Whether the acts committed by the accused satisfy the statutory requirements for "penetrative sexual assault" under Section 3 of the POCSO Act to sustain a conviction under Section 6.

2. Whether the evidence presented warrants a conviction for an "attempt" to commit the offense under Section 18 of the POCSO Act instead of the completed offense.

The court primarily applied Section 3 of the POCSO Act, which exhaustively defines "penetrative sexual assault" as requiring penetration to any extent by the penis (or other objects/body parts) into the vagina, mouth, urethra, or anus.

It also applied Section 18 of the POCSO Act regarding the punishment for attempts to commit offenses.

The court referred to the legal distinction between "preparation" and "attempt" established in State of Madhya Pradesh v. Mahendra @ Golu (2022), noting that an attempt begins after preparation ends and involves the execution of mens rea through an overt act, even if the final crime is not completed.

The court found that while the testimony of PW1 and PW2 consistently described the Appellant rubbing his penis against the victim's urinary part, there was no evidence or testimony establishing that penetration actually occurred.

Consequently, the court determined that the act did not meet the specific criteria for "penetrative sexual assault" defined in Section 3(a)-(d) of the POCSO Act.

However, the court emphasized that the Appellant had progressed far beyond the stage of mere preparation by undressing himself and the child and committing the act.

Given the clear intent and overt physical contact, the court reasoned that the Appellant’s conduct constituted an "attempt" to commit aggravated penetrative sexual assault under Section 18, rather than the completed offense.

The court instead held the Appellant guilty of an attempt to commit aggravated penetrative sexual assault under Section 18 read with Section 6 of the POCSO Act.

In accordance with Section 57 of the IPC (limiting attempt sentences to half the maximum term), the court modified the sentence from 20 years to 10 years of rigorous imprisonment.