Simple Touch Not ‘Manipulation’ For Penetrative Sexual Assault Under POCSO Act: Delhi High Court

The Delhi High Court on Monday ruled that a simple act of touch cannot be considered as manipulation for the offence of penetrative sexual assault under Section 3(c) of the POCSO Act.

Section 3(c) of the POCSO Act states that a person is said to commit "penetrative sexual assault" if he manipulates any part of the child’s body so as to cause penetration into the vagina, urethra, anus or any other body part or makes the child to do so with him or any other person.

“A simple act of touch cannot be considered to be manipulation under Section 3(c) of the Act. It is relevant to note that under Section 7 of the POCSO Act, ‘touch’ is a separate offence. If the submission raised by the learned APP that a touch would amount to manipulation is accepted, then Section 7 of the Act would be rendered redundant,” Justice Amit Bansal observed.

The court made the observation while dealing with a plea moved by a man challenging his conviction and 10 years of sentence for raping a six year old girl.

He was convicted in 2020 for the offences punishable under Section 376 (rape) of the Indian Penal Code, 1860, and Section 6 (aggravated penetrative sexual assault) of the POCSO Act, 2012.

Justice Bansal observed that the offence under Section 6 of the POCSO Act was not proved against the convict beyond all reasonable doubt. However, the court added that the offence of aggravated sexual assault under Section 10 was proved against him beyond all reasonable doubt.

“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...Therefore, the appeal is partially allowed and the impugned judgment is modified to the extent that instead of Section 6 of the POCSO Act, the appellant stands convicted under Section 10 of the POCSO Act,” the court held.

It sentenced the man to undergo rigorous imprisonment of five years for the offence under Section 10 of the POCSO Act and retained the fine of Rs.5,000 awarded by the Trial Court.

This was after the court noted that the statements made by the minor victim at various points of time showed that there were material improvements in them.

“In her statement during the MLC as well as her statement recorded under Section 161 of the CrPC, the victim has consistently stated that the appellant touched her anal region with his finger through her clothes. However, in her statement under Section 164 of the CrPC, she has stated that the appellant inserted his whole finger inside her anal region and also held her throat and threatened her,” the court said.

Furthermore, Justice Bansal said that there was no mention about the man cutting the victim’s anal region with his finger nails in her earlier statements wherein she stated that he touched her anal region through her clothes.

“It cannot be disregarded that the victim at time of incident was a child of six years and therefore, some leeway has to be provided for minor inconsistencies in her statement. However, from the analysis above, it cannot be stated that the contradictions in the statements of the victim are minor or immaterial,” the court said.

Noting that there was no independent witness or a medical evidence supporting the prosecution’s case, the court observed that though a conviction can be made only on the basis of the testimony of the prosecutrix without any independent corroboration, however, in such a case, her testimony has to be of a sterling quality.

“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,” the court said.

Counsel for Petitioner: Mr.Rajive Maini, Ms.Shriya Maini, AOR with Ms.Aparna Kaushik and Ms.Neeshu Chandpuniya, Advocates

Counsel for Respondent: Mr. Ritesh Kumar Bahri, APP for State

Title: SHANTANU v. THE STATE

Citation: 2023 LiveLaw (Del) 1078

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