Simple Touch Not ‘Manipulation’ For Penetrative Sexual Assault Under POCSO Act: Delhi High Court
Case: SHANTANU v. THE STATE
Coram: Justice Amit Bansal
Case No.: CRL.A. 160/2021
Court Observation: “A simple act of touch cannot be considered to be manipulation under Section 3(c) of the Act. It is relevant to note that under Section 7 of the POCSO Act, ‘touch’ is a separate offence. If the submission raised by the learned APP that a touch would amount to manipulation is accepted, then Section 7 of the Act would be rendered redundant,”.
“Section 3(c) of the POCSO Act shows that for an act to be a penetrative sexual assault, the accused has to manipulate any part of the body of the child so as to cause penetration. There is nothing in the present case to show that there was any manipulation on any part of the body of the victim so as to cause penetration… Therefore, the appeal is partially allowed and the impugned judgment is modified to the extent that instead of Section 6 of the POCSO Act, the appellant stands convicted under Section 10 of the POCSO Act,”.
“In her statement during the MLC as well as her statement recorded under Section 161 of the CrPC, the victim has consistently stated that the appellant touched her anal region with his finger through her clothes. However, in her statement under Section 164 of the CrPC, she has stated that the appellant inserted his whole finger inside her anal region and also held her throat and threatened her,”.
“It cannot be disregarded that the victim at time of incident was a child of six years and therefore, some leeway has to be provided for minor inconsistencies in her statement. However, from the analysis above, it cannot be stated that the contradictions in the statements of the victim are minor or immaterial,”.
“A perusal of Section 3(c) of the POCSO Act shows that for an act to be a penetrative sexual assault, the accused has to manipulate any part of the body of the child so as to cause penetration. There is nothing in the present case to show that there was any manipulation on any part of the body of the victim so as to cause penetration,”.
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