Occurrence of penetrative sexual assault to be proved for conviction under S. 6, POCSO Act

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, modified the conviction of the appellant to a conviction under Section 18 of the POCSO Act (hereinafter the Act) instead of Section 6 of the Act.

The appellant made only one submission that the offence proved against the appellant is not of ‘penetrative sexual assault’ and as such does not fall under Sections 5(k) and 6 of the Act. Counsel for the appellant relied on the testimonies of the prosecutrix and other prime witnesses in which none of them had claimed penetration. Medical examination of the victim and the appellant also indicated absence of penetration. There also were some contradictions in the testimony of the prosecutrix which did not corroborate with the reports of medical examination. The counsel pleaded that, at best, the conviction could be of attempt to commit penetrative sexual assault and the most the appellant could be convicted under is Section 18 of the POCSO Act.

The Court held that in the absence of penetrative sexual assault, offence and sentence under Sections 5(k) and 6 cannot be made out. Consequently, the sentence was set aside. However, the evidence led in the case established an offence under Section 18 of the Act. Hence, the appellant was sentence to 10 years’ rigorous imprisonment with a fine of Rs. 10,000. In default of payment of fine, he was to undergo simple imprisonment for six months. Appeal allowed. [Manoj v. State, Crl. Appeal 647/2014, decided on 21.11.2017]

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