A "simple touch" cannot be considered "manipulation" of a minor victim's body so as to cause penetration and attract the offence of penetrative sexual assault under the POCSO Act, the Delhi High Court Monday said.
Justice Amit Bansal said "touch" was a separate offence under the Protection of Children from Sexual Offences (POCSO) Act as he refused to uphold the conviction of a man for "aggravated penetrative sexual assault" for touching the private body part of a six-year-old girl student of his brother, a tuition teacher.
The judge, however, refused to interfere with the conviction and five-year jail term awarded to the man for the offence of "aggravated sexual assault" under the law.
"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," said the court while dealing with the convict's appeal against the trial court's decision.
"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 (sexual assault) 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," the court said in its order.
Sexual assault becomes "aggravated sexual assault" under under Section 10 of POCSO Act when committed on a child below 12 years of age.
The court observed there was 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 and satisfy the offence of "aggravated penetrative sexual assault".
The appellant argued there were serious lapses in the investigation and the victim's deposition contained material contradictions and improvements.
The court said two other children were present at the time of the incident but the prosecution did not make any attempt to question them which "clearly amounts to a serious lapse in the investigation".
It, however, added that merely because there were inconsistencies in the statement of the minor girl, it could not be said that her testimony was completely unreliable and should be disregarded in entirety.
The court said the victim has "consistently stated in her testimony as well as various previous statements" that she was touched in the anal region by the appellant and that caused her pain.
"I am of the opinion that the offence under Section 6 (Punishment for aggravated penetrative sexual assault) of the POCSO Act has not been proved against the appellant beyond all reasonable doubt. But the offence under Section 10 of the POCSO Act is proved beyond all reasonable doubt against the appellant," ruled the court.
"The appellant is sentenced to undergo rigorous imprisonment of five years for the offence under Section 10 of the POCSO Act. The fine of Rs.5,000/- awarded by the Trial Court is retained," it ordered.
