Delhi High Court Modifies Conviction Under Section 6 POCSO: Rules Rubbing Against Private Parts Constitutes Aggravated Sexual Assault

The High Court of Delhi has delivered a significant verdict clarifying the distinction between "penetrative sexual assault" and "aggravated sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act. In the appeal filed by Madhu Shudhan Dutto, the court ruled that the act of rubbing a penis against a child's private parts, without penetration, falls under Section 9 (m) of the POCSO Act instead of the more severe Section 6 .

The Case Background

The appellant, a doctor referred to by locals as the "Bengali Doctor," was convicted by a Special Court in 2025 for an incident occurring on June 28, 2016. According to the prosecution, the accused wrongfully confined a nine-year-old girl in his clinic while she was there to collect medicine for her sibling. The victim's mother discovered the appellant lying on top of her daughter with his undergarment lowered. The trial court initially convicted the appellant under Section 6 of the POCSO Act , sentencing him to ten years of rigorous imprisonment.

Contentions of the Parties

The appellant challenged the conviction, arguing that the evidence was inconsistent and that the medical testimony was improperly admitted. The defense posited that, at most, the incident could only be classified under Section 7 of the POCSO Act , which deals with sexual assault not amounting to penetration.

Conversely, the State emphasized the consistency of the victim's testimony and the supporting forensic evidence. The prosecution argued that the medical findings, despite the unavailability of the original examining doctor, clearly substantiated the assault, justifying the conviction under Section 6 .

Legal Analysis: Defining Penetration

The High Court conducted a granular analysis of Section 3 of the POCSO Act , which defines "penetrative sexual assault." Justice Chandrasekharan Sudha noted that while the victim's testimony and the forensic report indicated physical contact, the evidence did not satisfy the statutory threshold for penetration required under Section 3 clauses (a) through (d).

The court highlighted the crucial role of medical documentation. Addressing the admissibility of the medico-legal certificate (MLC) in the absence of the examining doctor, the court relied on Section 32 (2) of the Evidence Act.

> "It is well settled position of law that before using the statement, the witness must be afforded a reasonable opportunity of explaining the contradictions, after his attention has been drawn to such statements, in a fair and reasonable manner."

Key Observations

The judgment clarifies the evidentiary requirements for establishing sexual crimes against children: * On Evidence: "The testimony of PW5 that the doctor who examined PW1 was not available, has not been challenged, disproved or discredited. Therefore, the prosecution has succeeded in establishing one of the circumstances contemplated under Section 32 (1) of the Evidence Act." * On the Nature of the Act: "The rubbing of the penis of the accused against the private part of PW1 does not apparently come within clauses (a) to (d) of Section 3 of the Act. Therefore, the case of penetrative sexual assault... cannot be held to have been made out." * On Responsibility: "The accused in this case was a doctor to whom the child was sent for medicine. The accused was in a position of authority and trust, and it was such a position that had been misused by him."

Court's Decision

The High Court partially allowed the appeal, modifying the conviction to Section 9 (m) of the POCSO Act . Consequently, the sentence was reduced from ten years to seven years of rigorous imprisonment. The court further directed the Delhi State Legal Service Authority to expedite the disbursement of compensation to the victim, ensuring that the monetary relief reaches the survivor within two months.

This ruling serves as a vital precedent for lower courts to strictly adhere to the specific definitions within the POCSO Act , ensuring that sentencing remains proportionate to the proven severity of the criminal act.