Simple touch is not penetrative sexual assault under Posco Act: Delhi HC

In the November 6 order, Justice Bansal observed that “touch” is a separate offence under Section 7 of the POCSO Act which pertains to sexual assault. If touch is considered as amounting to manipulation then Section 7 would be rendered redundant, the court added.

“A perusal of Section 3(c) of the Pocso Act shows that for an act to be a penetrative sexual assault, the accused has to manipulate any part of the body of the child so as to cause penetration. There is nothing in the present case to show that there was any manipulation on any part of the body of the victim so as to cause penetration,” Justice Bansal said.

However, the bench said the offence of “aggravated sexual assault” under the Pocso Act was “proved beyond all reasonable doubt” against the man. The bench, therefore, modified the trial court’s order by convicting him of aggravated sexual assault and sentencing him to rigorous imprisonment of five years.

Sexual assault becomes “aggravated sexual assault” under Section 10 of the Pocso Act when committed on a child below 12 years of age. The HC also analysed various statements made by the girl at various points of time in the case while observing that it showed that there have been “material improvements in the statements”.

The court observed that in her statement during the Medico Legal Case as well as her statement recorded under Section 161 of the CrPC, the girl had consistently stated that the man touched her anal region with his finger through her clothes. However, in her statement under Section 164 of the CrPC, she said the man inserted his whole finger inside her anal region and also held her throat and threatened her.

The court also observed the girl in her deposition before the trial court for the first time had stated that the man had slid his hand through her clothes and that he had cut her anal region with his fingernails.

“Clearly, this amounts to a material improvement. There was no mention about the appellant cutting her anal region with his fingernails in her earlier statements,” the HC added.

However, the High Court said that merely because there were inconsistencies in the statement of the girl, it can’t be said that her testimony was completely unreliable and should be disregarded in its entirety. The court said the girl had “consistently stated in her testimony as well as various previous statements” that she was touched in the anal region by the man and that caused her pain.

The court said there appeared to be a serious lapse in investigation as the girl’s testimony indicated that two other children were present at the time of the incident, who were not questioned by the prosecution.