Rubbing Penis Against Child's Private Part Not 'Penetrative Sexual Assault' Under POCSO Act: Delhi High Court Modifies Man's Conviction
The Delhi High Court has held that rubbing of a male genital against a child's genital, in the absence of proof of penetration, does not constitute “penetrative sexual assault” under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act.Justice Chandrasekharan Sudha observed,“The rubbing of the penis of the accused against the private part of PW1 does not apparently...
The Delhi High Court has held that rubbing of a male genital against a child's genital, in the absence of proof of penetration, does not constitute “penetrative sexual assault” under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act.
Justice Chandrasekharan Sudha observed,
“The rubbing of the penis of the accused against the private part of PW1 does not apparently come within clauses (a) to (d) of Section 3 of the Act. Therefore, the case of penetrative sexual assault under Section 3 or aggravated penetrative sexual assault as contemplated under Section 5 of the PoCSO Act cannot be held to have been made out from the materials available on record.”
The bench thus modified the conviction and ten years rigorous imprisonment sentence imposed by a Special POCSO Court upon the Appellant, for aggravated penetrative sexual assault.
The case related to an incident in 2016 when the Appellant, a doctor, was alleged to have sexually assaulted a 9 years old girl inside his clinic.
The trial court had convicted the accused under Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act and Section 342 (punishment for wrongful confinement) IPC.
The High Court however noted that while the testimony of the child victim and her mother clearly established sexual assault, neither the first information statement nor the child's statement recorded under Section 164 CrPC disclosed penile penetration.
Interpreting Section 3 of the POCSO Act, the Court held that penetrative sexual assault requires proof of penetration “to any extent” into the vagina, mouth, urethra or anus of the child.
“Exhibit PW7/A FIS which is the first statement made relating to the crime given by PW7 states that the accused had rubbed his body against the body of the victim…This at best can be taken as rubbing of the penis of the accused against the genital of PW1…The offence under Section 6 is not made out,” it said.
As such, the conviction under Section 6 POCSO Act was set aside and the Court held that Appellant is instead guilty of 'aggravated sexual assault' under Section 9(m) of POCSO Act.
The sentence was accordingly reduced from ten years to seven years' rigorous imprisonment. The conviction and sentence under Section 342 IPC was affirmed.
Appearance: Mr. Biswajit Kumar P. and Ms. Khushboo Gupta, Advocates for Appellant; Mr. Pradeep Gahlot, APP for State Mr. Amit Gupta, Mr. Kshitij Vaibhav, Ms. Muskan Nagpal and Mr. H.S. Mahapatra, Advocates for respondent No.2.
Case title: Madhu Shudhan Dutto v. State Govt. Of Nct Of Delhi
Case no.: CRL.A. 649/2025