Compelling Minor To Touch Private Part With Sexual Intent Amounts To Aggravated Sexual Assault Under Section 10 POCSO Act: Delhi High Court
Safiya Malik
The High Court of Delhi Single Bench of Justice Neena Bansal Krishna held that compelling a minor child to touch an adult’s private part with sexual intent constitutes aggravated sexual assault punishable under Section 10 of the POCSO Act. The Court upheld the conviction of an accused man and maintained the seven-year rigorous imprisonment imposed for aggravated sexual assault on a girl aged 3 years and 11 months, arising from allegations that he exposed himself and made the child touch his genital area. At the same time, the Court set aside his conviction under the Indian Penal Code provisions relating to outraging modesty, sexual harassment, and assault or criminal force to disrobe, noting that his conviction and sentence would stand only under the POCSO offence.
The appeal before the High Court arose from a conviction recorded by the Sessions Court for offences under the Protection of Children from Sexual Offences Act, 2012, along with provisions of the Indian Penal Code. The prosecution case was that the accused, a tenant residing in the complainant’s house, committed sexually inappropriate acts against a minor girl aged three years and eleven months when she was alone at home. The incident was disclosed by the child to her mother upon her return. A police complaint was lodged after the child’s father returned home.
During investigation, the child was medically examined and her statements were recorded under Sections 161 and 164 of the Code of Criminal Procedure. The prosecution examined six witnesses, including the victim and her mother. The trial court convicted the accused under Section 9(m) read with Section 10 of the POCSO Act and under Sections 354/354A/354B of the IPC, sentencing him to rigorous imprisonment.
The accused challenged the conviction on grounds of unexplained delay in FIR registration, contradictions in the child’s testimony, lack of medical corroboration, non-examination of independent witnesses, alleged tutoring, and improper assessment of the child’s competency. The State opposed the appeal, relying on the consistency of testimony and the statutory presumption under the POCSO Act.
The Court examined the evidence of the child victim and her mother and recorded that “the testimony of the Child has been consistent in her testimony as PW-1 and also with the testimony of PW-2, her Mother”. It rejected the argument that the child’s act of returning home alone was implausible, observing that “merely because the child decided to return to her house which was close by, cannot be a circumstance which is totally unbelievable”.
On the alleged inconsistencies between statements under Sections 161 and 164 CrPC, the Court stated that “having regard to the tender age of the child at the time of the incident and the limited vocabulary of a child of such age, such variance cannot be treated as a material contradiction”. It further observed that “minor variation in expression, does not affect the credibility of the witness”.
Addressing the challenge to the child’s competency, the Court recorded that “before recording her statement, the questions were addressed to her to ensure that she was comfortable and was competent to give a statement” and noted that the testimony was recorded in question-and-answer form with due sensitivity.
On the allegation of tutoring, the Court observed that “nothing has emerged to show that the Child had been tutored” and clarified that counselling by child welfare authorities was meant “to help the Child in dealing with trauma and for mental help”.
With respect to delay in FIR, the Court accepted the explanation offered and observed that “sexual abuse of children remains shrouded in shame, guilt, family honour and hence is seldom reported”. It held that the delay did not undermine the prosecution case.
Regarding medical evidence, the Court stated that “once there was no penetrative assault, the likelihood of there being any injury to the child, is not likely to happen” and held that absence of injury could not discredit the testimony. It further recorded that “once the entire incident was established on cogent evidence, the presumption of Section 29 POCSO Act arose”.
The Court directed that “the conviction and sentence of the Appellant under Sections 354/354A/354B IPC are hereby set aside. The conviction and sentence under Section 10 POCSO Act, is upheld. There is no merit in the Appeal, which is hereby dismissed along with pending Applications, if any”.
Advocates Representing the Parties
For the Appellant: Mr. Prateek Kumar, Ms. Ankita, Mr. Prassant Kumar Sharma and Mr. Chetan Charitra, Advocates
For the Respondent: Mr. Utkarsh, APP for the State; Ms. Tanya Agarwal (DHCLSC) and Mr. Krishna Kumar Keshav, Advocates for the complainant
Case Title: Dharmendra Kumar v. State (NCT of Delhi)
Neutral Citation: 2026: DHC:34
Case Number: CRL.A. 51/2025
Bench: Justice Neena Bansal Krishna
