Delhi High Court: In a criminal appeal filed by accused, a Doctor, challenging his conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Section 342 of the Penal Code, 1860 (IPC) for committing sexual assault upon a minor girl aged about nine years inside his clinic, a Single Bench of Chandrasekharan Sudha,* J., held that rubbing penis against child’s private part does not constitute ‘Penetrative Sexual Assault’ under POCSO Act but amounts to ‘aggravated sexual assault’ under Section 9(m), punishable under Section 10 of the POCSO Act. The Court modified the sentence awarded by the trial court to rigorous imprisonment for 07 years.
In the instant matter, victim’s mother (PW7) sent her minor daughter-victim (PW1), aged about 9 years, to the clinic of the appellant-accused, a local doctor known as “Bengali Doctor”, to obtain medicine for her younger sister who was suffering from loose motions.
After about five minutes, victim’s mother followed her daughters to the clinic. On reaching there, she noticed that the shutter of the clinic was half closed and the curtain was fully drawn. Upon entering and removing the inner curtain, victim’s mother found her younger daughter sitting on a bench and saw victim lying on another bench with the accused lying on top of her, both being partially undressed. The victim’s mother raised an alarm, upon which people from the neighbourhood gathered and the landlady of the accused called the police.
When victim’s mother questioned her daughter, the victim told her “Doctor had removed my undergarment and made me lie on the bench. Then, he removed his underwear till his knees and lay on top of me and started rubbing against my body.” The police were informed and victim was taken for medical examination on the same evening and FIR was registered.
After investigation, the accused was charge-sheeted for offences under Section 342 IPC and Section 6 of the POCSO Act. The Trial Court convicted the accused under Section 6 of the POCSO Act and Section 342 IPC and sentenced him to 10 years’ rigorous imprisonment under POCSO and 6 months’ rigorous imprisonment under Section 342 IPC. Aggrieved, the accused preferred the present appeal.
The Court examined the testimony of witnesses, the FIR, Section 164 statement, medical evidence and FSL report. The Court noted that the testimony of the mother of the victim and victim was reliable and consistent regarding the occurrence of sexual assault. It was noted that the presence of the accused at the spot and the wrongful confinement of the child stood proved. The Medico-Legal Certificate was legally proved under Section 32(2) of the Evidence Act as the doctor was untraceable and PW5 proved his handwriting and signature.
The Court further noted that in the First Information Statement (FIS) of victim’s mother and in the S. 164 statement of victim, there is no mention of penile penetration However, it was stated that the accused had rubbed his body against the body of the victim.
The Court asserted that “the rubbing of the penis of the accused against the private part of victim does not apparently come within clauses (a) to (d) of Section 3 of the Act.” Therefore, the Court held that the offence of penetrative sexual assault under POCSO Act was not made out.
The Court, however, opined that the act clearly constituted sexual assault under Section 7 POCSO Act and since the victim was below 12 years of age, it amounted to aggravated sexual assault under Section 9(m), punishable under Section 10 of the POCSO Act.
The Court observed the accused was a doctor to whom the child was sent for medicine. He was in a position of authority and trust, and it was such a position that had been misused by him. Therefore, the Court asserted that in such circumstances, “no leniency is called for.”
The Court set aside the conviction under Section 6 POCSO Act, altered the conviction to Section 9(m) POCSO Act (aggravated sexual assault) and modified the sentence to 7 years’ rigorous imprisonment. The Court, however, upheld the conviction and sentence under Section 342 IPC. The Court further directed the Delhi State Legal Services Authority to disburse the compensation to the victim within two months.
[Madhu Shudhan Dutto v. State (NCT of Delhi), CRL.A. 649/2025 & CRL.M.(BAIL) 1046/2025, Decided on 15-01-2026]
*Judgment by Justice Chandrasekharan Sudha
Advocates who appeared in this case:
Mr. Biswajit Kumar P. and Ms. Khushboo Gupta, Counsel for the Appellant
Mr. Pradeep Gahlot, APP for State Mr. Amit Gupta, Mr. Kshitij Vaibhav, Ms. Muskan Nagpal and Mr. H.S. Mahapatra, Counsel for the Respondent 2
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
