Touching Private Parts Of Child Below 12 Without Penetration Constitutes Aggravated Sexual Assault Under POCSO Act: Gauhati High Court

The Gauhati High Court has held that even where the prosecution fails to establish penetrative sexual assault beyond reasonable doubt, evidence that an accused touched the private parts of a child below 12 years of age can sustain a conviction for aggravated sexual assault under the POCSO Act. 

The Division Bench of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma observed that although the evidence did not sufficiently establish the allegation of penetration, the victim's testimony established that the accused had put his hand inside her underwear and touched her private parts.

The Court held that the conduct constituted sexual assault under Section 7 of the POCSO Act. Since the victim was below 12 years of age, the offence was aggravated sexual assault under Section 9(m), punishable under Section 10 of the Act.

The Court made these observations while partly allowing an appeal filed by Appellant against his conviction by the Special Court. The trial court had sentenced him to 20 years of rigorous imprisonment this offence.

The prosecution alleged that on December 27, 2020, the victim's mother had left her daughter at the appellant's house to watch television. When the child returned, she told her mother that the appellant had inserted his finger into her private parts, causing bleeding and difficulty in urinating. The FIR was lodged around seven days later.

The High Court noted that the medical examination revealed no bleeding or visible injuries. A prosecution witness had also stated that the child's underwear was clean shortly after the incident. Further, the allegation that the appellant had inserted a wire was absent from the victim's statement and was not corroborated by other evidence.

In these circumstances, the Court found reasonable doubt regarding penetration. However, it accepted the victim's testimony regarding the touching of her private parts. The Court also found the explanation for the delay in lodging the FIR questionable, noting that the investigating officer had stated that the mother did not seek medical examination of the child when the FIR was lodged.

High Court accordingly altered the charge under Section 216 CrPC and convicted the appellant under Section 10 of the POCSO Act. It reduced his sentence from 20 years to five years of rigorous imprisonment while retaining the fine of Rs.15,000.

The period already undergone by appellant was directed to be set off against the sentence.

Counsel for the Appellant: Mr. R.P. Sarmah, Senior Advocate, assisted by Ms. A. Deka, Advocate.

Counsel for the Respondents: Mr. R.R. Kaushik, Additional Public Prosecutor, Assam and Ms. S. Sharma, Legal Aid Counsel for Respondent No. 2.