Rubbing Is Not Penetration: Delhi High Court Reverses POCSO Conviction Under Section 6, Finds Only Sexual Assault Made Out

“Act May Be Morally Reprehensible, But Does Not Satisfy Legal Ingredients of Penetrative Sexual Assault” –  In a detailed and nuanced judgment that re-examines the legal thresholds under the Protection of Children from Sexual Offences Act (POCSO), the Delhi High Court partly allowed an appeal against a conviction under Section 6 POCSO by modifying the conviction to Section 10 POCSO, holding that “rubbing of genitals” without penile penetration does not meet the strict statutory requirements of penetrative sexual assault under Section 3 of the Act.

Justice Chandrasekharan Sudha ruled that while the accused had committed sexual assault on a minor girl aged 9, the evidence failed to establish penetration as defined under clauses (a) to (d) of Section 3 of the POCSO Act. The conviction for aggravated penetrative sexual assault under Section 6 was set aside and substituted with aggravated sexual assault under Section 9(m), punishable under Section 10.

The Court reduced the sentence from ten years to seven years rigorous imprisonment and upheld the concurrent sentence under Section 342 IPC for wrongful confinement.

“Victim’s Deposition About Penetration Is An Improvement Over Earlier Statements And Not Substantive” – Court Applies Test Of Consistency Under Evidence Act

A key turning point in the judgment was the Court’s scrutiny of the victim’s statements under Section 164 CrPC, FIR statements, and court testimony, which the Court found inconsistent on the crucial point of penetration.

Justice Sudha observed that,

“In the FIR and Section 164 statement of the victim, there is no case of penile penetration. Therefore, the case of penetration made by PW1 in the witness box is an apparent improvement over her earlier versions.”

The Court reiterated that improvements in testimony, especially on essential ingredients of the offence, cannot be the basis for sustaining a conviction under a higher penal provision like Section 6 of the POCSO Act. The Court held that,

“The rubbing of the penis of the accused against the private part of the victim does not come within clauses (a) to (d) of Section 3. Therefore, the case of penetrative sexual assault under Section 3 or aggravated penetrative sexual assault under Section 5(m) cannot be made out from the materials on record.”

“Proof Of MLC Without Examining Doctor Is Permissible Where Doctor’s Whereabouts Are Unknown” – Court Applies Section 32(2) Of Evidence Act

A major evidentiary challenge before the Court was the admissibility of the Medico-Legal Certificate (MLC) in the absence of the examining doctor. The defence had contended that the non-examination of the doctor rendered the MLC inadmissible, but the Court rejected this argument.

Citing binding precedent, including Prithi Chand v. State of Himachal Pradesh and Kochu v. State of Kerala, the Court clarified:

“The prosecution has succeeded in establishing one of the circumstances contemplated under Section 32(1) of the Evidence Act, that is, the attendance of the doctor who examined the victim could not be procured without an amount of delay. Therefore, the MLC becomes relevant under Section 32(2).”

The Court accepted the testimony of another doctor (PW5) familiar with the signature and handwriting of the original doctor as sufficient to prove the document under Sections 32(2), 47 and 67 of the Indian Evidence Act.

“Defence Failed To Prove Contradictions In Victim’s Statement As Per Law – Confrontation Without Compliance Of Section 145 Is Ineffective”

The defence had relied on alleged contradictions and omissions in the victim’s statements under Section 161 and 164 CrPC, particularly concerning the allegation of penetration. However, the Court held that such contradictions had not been proved in the manner prescribed under law.

Justice Sudha explained:

“Mere marking of contradictions is insufficient. The procedure for proving contradictions requires strict compliance with Section 145 of the Evidence Act and proviso to Section 162 CrPC.”

Quoting Tahsildar Singh v. State of U.P. and State of Kerala v. Thomas, the Court reiterated that unless a contradiction is duly proved through confrontation and follow-up with the investigating officer, the defence cannot rely on it.

“Seminal Stains Alone Do Not Prove Penetration – Presence Of Semen Must Be Correlated With Act Alleged” – Court Restrains Inference From FSL Report

While the FSL report did indicate the presence of semen stains on the victim’s underwear matching the DNA of the accused, the Court refused to draw a direct conclusion of penetrative sexual assault solely on that basis.

The Court held: “From a reading of all the materials available, it appears that the assault was interrupted before completion. The materials suggest the act had just about commenced when the mother entered. In such circumstances, semen stains alone are not sufficient to elevate the offence to penetrative sexual assault.”

“When Victim Is Below 12, Even Attempted Assault Becomes Aggravated” – Court Affirms Conviction Under Section 9(m) And Sentences To Seven Years

While setting aside the conviction under Section 6, the Court was unequivocal that the offence still fell squarely within the ambit of aggravated sexual assault under Section 9(m) POCSO, which applies when the child victim is below 12 years of age.

The Court noted:

“The accused was a doctor to whom the child was sent in good faith. He misused that position of trust. The accused is seen to have been old enough to be the grandfather of the victim. No leniency is called for.”

Accordingly, the Court modified the sentence to seven years rigorous imprisonment, the maximum prescribed under Section 10 of the Act, and ordered that the sentence under Section 342 IPC (six months) would run concurrently.

“Compensation Must Reach The Victim Without Delay” – Delhi State Legal Services Authority Directed To Disburse Compensation Within Two Months

During the hearing, the counsel for the victim informed the Court that compensation awarded by the trial court had not yet been disbursed. Taking serious note, the Court directed:

“The Delhi State Legal Services Authority is directed to disburse the compensation awarded at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment.”

Date of Decision: 15/01/2026