Rubbing Penis on Child Without Penetration Attracts Attempt Charge Under POCSO: Delhi HC [Read Judgment]

New Delhi: The Delhi High Court has partly allowed an appeal against a conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), holding that while the prosecution had not established penetrative sexual assault, the accused's conduct amounted to an attempt to commit aggravated penetrative sexual assault on a child below twelve years of age.

Justice Chandrasekharan Sudha was hearing an appeal filed under Section 374(2) of the Cr.P.C. by the sole accused, Anil, against his conviction by the Additional Sessions Judge-01, North Rohini, who had found him guilty under Section 6 of the POCSO Act and Section 376(2)(i) of the IPC and sentenced him to twenty years of rigorous imprisonment.

The prosecution's case was that on 30.10.2014, the accused took the three-year-old victim, his neighbour, to his house on the pretext of giving her food, undressed her and himself, made her lie down, and rubbed his penis against her private part, soiling her clothing in the process. The child's mother lodged an FIR the same day, and the accused was chargesheeted under Section 376 IPC and Section 4 of the POCSO Act. The trial court later amended the charge to Section 6 of the POCSO Act and Section 376(2)(i) IPC, to which the accused pleaded not guilty, taking the defence that he had been falsely implicated over a money dispute with the victim's father and that he was heavily intoxicated at the time.

Before the High Court, counsel for the appellant argued that the trial court had failed to properly appreciate the evidence and that no case of penetration was made out, and that the conviction under Section 6 of the POCSO Act was accordingly unsustainable. The State opposed the appeal, submitting that there was no infirmity in the trial court's findings warranting interference.

Examining the evidence, the Court noted that the FIR, the victim's mother's Section 164 statement, and the testimonies of both the child and her mother were consistent in describing that the accused had undressed the child and himself and rubbed his penis against her private part. The Court also noted that the FSL report showed that DNA profiles generated from the victim's clothing and vaginal swabs matched the accused's blood sample, and that the witnesses were consistent that the accused had ejaculated during the act.

Turning to the ingredients of Section 3 of the POCSO Act, the Court observed that the rubbing of the accused's penis against the victim's private part did not fall within any of the four clauses defining "penetrative sexual assault" under the Act, since there was no penetration, however slight, into the vagina, mouth, urethra or anus. The Court accordingly held that the offence of penetrative sexual assault under Section 3, or its aggravated form under Section 5 of the POCSO Act, could not be said to have been made out on the materials on record.

The Court, however, went on to examine whether the conduct amounted to an attempt to commit penetrative sexual assault under Section 18 of the POCSO Act. Relying on the Supreme Court's decision in State of Madhya Pradesh v. Mahendra @ Golu, (2022) 12 SCC 442, the Court reiterated the distinction between "preparation" and "attempt":

"The stage of 'preparation' consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. An 'attempt' to commit the offence, starts immediately after the completion of preparation. 'Attempt' is the execution of mens rea after preparation. 'Attempt' starts where 'preparation' comes to an end, though it falls short of actual commission of the crime."

Applying this test, the Court held that the accused, having undressed himself and the victim and proceeded to rub his penis against her private part, had gone well beyond the stage of preparation and demonstrated a clear intention to commit penetrative sexual assault, even though the act itself fell short of penetration as defined under Section 3. The Court held that this conduct squarely attracted Section 18 read with Section 6 of the POCSO Act, being an attempt to commit aggravated penetrative sexual assault on a child below twelve years.

On sentencing, the Court noted that Section 18 of the POCSO Act prescribes imprisonment extending up to one-half of the term provided for the completed offence, and that by operation of Section 57 IPC, the maximum sentence permissible for the offence as reframed was ten years. The Court observed that the accused was old enough to be the victim's father, and held that no leniency was warranted in the circumstances.

The Court also addressed a procedural objection concerning non-compliance with Section 232 Cr.P.C. following the accused's examination under Section 313 Cr.P.C., holding that such non-compliance does not ipso facto vitiate proceedings unless it is shown to have caused serious and substantial prejudice, which was not demonstrated in this case.

In the result, the Court partly allowed the appeal, modifying the conviction and sentence of the appellant to the offence punishable under Section 18 read with Section 6 of the POCSO Act, and reduced the sentence from twenty years to rigorous imprisonment for a period of ten years.

Appearances: Mr. Azhar Qayam, Mr. Narender Kumar, Mr. Shahmuddin Zehri, Mr. Zubair Khan and Ms. Priyanka Singh appeared for the appellant; Ms. Manjeet Arya, APP, appeared for the State along with SI Lal Chand; Mr. Abhimanyu Singh, Advocate, appeared as Amicus Curiae for the victim.

Case Title: Anil v. State

[Read Judgment]