Delhi High Court Modifies POCSO Conviction To Less Grave Offence, Orders Release As Convict's Imprisonment Exceeds Maximum Punishment

The Delhi High Court has held that a man accused of sexually abusing a minor cannot be punished under Section 6 of the POCSO Act for the offence of 'aggravated penetrative sexual assault' when the alleged act falls short of 'penetration'.

The bench of Justice Jasmeet Singh held that without penetration, such act is only an attempt to rape or aggravated sexual assault as per Section 9(m) of the POCSO Act, which is punishable under Section 10 of the Act with 5-7 years imprisonment and fine.

The Court was dealing with an appeal against conviction for aggravated penetrative sexual assault on a three year old minor girl by one Mohd. Azizul. He was sentenced to rigorous imprisonment for 14 years.

The bench noted that while there was sexual assault committed on the minor and the intent to commit rape was proved before the trial court, the statements of victim's mother and the MLC raised a doubt regarding penetration.

"I understand and sympathise that a 3 year old may not be called to court for her examination, and her vocabulary and her understanding of the situation itself would fall short of describing the incident, clearly and in its entirety, however, without presence of any evidence or testimony alleging penetration, the Appellant cannot be held liable/guilty under Section 6 of the POCSO," the Court said.

The Court thus modified his conviction from 'aggravated penetrative sexual assault' under Section 6 to 'aggravated sexual assault' under Section 9 of the POCSO Act. It also directed that the man be released for having undergone about 8 years and 8 months in jail, exceeding the maximum sentence for the offence.

Observing that the prosecution failed to lay down the foundational facts regarding penetration as per the POCSO Act, the Court said:

"I am of the opinion that while the Appellant assaulted the victim, no penetration took place. It cannot be denied that there was an attempt to rape by the presence of semen on the underwear of the victim, however, the MLC and the statement of the mother under 164 CrPC indicate that there was no penetration."

The plea was accordingly disposed of.

Case Title: MOHD AZIZUL v. STATE

Citation: 2022 LiveLaw (Del) 784

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