Man who makes child touch his private parts guilty of aggravated sexual assault under POCSO Act: Delhi HC

The Delhi High Court has ruled that making a minor child touch another person's private parts with sexual intent amounts to aggravated sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) [Dharmendra Kumar vs. State]..Justice Neena Bansal Krishna made the observation while upholding the conviction of a man booked for sexually assaulting a three-year-old girl. "Making a small child touch the private part with sexual intent amounts to aggravated sexual assault and therefore, the offence under Section 10 POCSO Act, was established,” the Court said..The case concerned a 2022 incident. A three-year-old child had told her mother that a tenant living in the building where they stayed had flashed his private parts and made the child touch them. This led the mother to file a criminal case. A trial court eventually convicted the accused man and sentenced him to seven years of imprisonment for offences under the POCSO Act and the Indian Penal Code. The accused (appellant) eventually challenged his conviction before the Delhi High Court. .Among other arguments, he contended that during the trial, the child had initially said that he had inappropriately touched her, only to later embellish her statement and claim that he “inserted” his private part. The appellant argued that such discrepancies rendered the child's statements unreliable. The Court rejected this contention, observing that the minor’s tender age cannot be overlooked. It also noted that the mother's testimony regarding what the child had told her supported the victim-child's allegations against the accused. Moreover, there was also a statement made to the police, wherein the child had indicated that the accused had touched her private part with his penis. “It cannot be overlooked that the Victim was barely 03 years 11 months at the time of the incident and her testimony had been recorded on 05.06.2023, i.e. barely after about one year of the registration of FIR, reflecting that she was almost 5 years old. While appreciating the testimony of the Child, the tender age cannot be overlooked. There may have been minor improvement in a statement under Section 164 Cr.P.C., but she has been consistent in her testimony as PW-1, which is fully corroborated by the testimony of her Mother PW-2 and the incident as narrated in the Complaint, Ex.PW-2/A made by her, in the first instance,” the Court stated. .The Court agreed with the observation of the Sessions Court that the minor’s statements cannot be discarded.“Having regard to the tender age of the child at the time of the incident and the limited vocabulary of a child of such age, such variance cannot be treated as a material contradiction. The core allegation of sexual assault by the Appellant, has remained consistent. Minor variation in expression, does not affect the credibility of the witness,” the Court held. .On the other hand, the Court observed that the appellant's statements were inconsistent, which reflected the falsity of his defence. The Court also observed that his inebriated state at the time of the incident, as alleged in the complaint, explains the circumstances that led to the sexual assault. The Court concluded that the trial court had rightly convicted him of aggravated sexual assault under the POCSO Act. However, it set aside his conviction under Sections 354 (outraging modesty of a woman), 354A (sexual harassment) and 354B (assaulting or using criminal force on a woman to disrobe) of the Indian Penal Code since these charges were not framed by the trial court. "No Charge under Sections 354/354A/354B IPC was framed and therefore, the Appellant could not have been convicted under these Sections. Pertinently, there was no separate Sentence under these Sections," the Court explained..Advocates Prateek Kumar, Ankita, Prassant Kumar Sharma and Chetan Charitra appeared for the appellant.Public Prosecutor Utkarsh appeared for the State.Advocates Tanya Agarwal and Krishna Kumar Keshav appeared for the complainant..[Read judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.