Delhi High Court Holds Rubbing of Penis Without Penetration Is Not Penetrative Sexual Assault but an Attempt Under POCSO
Facts
The appellant, Anil, challenged the judgment of the Trial Court convicting him under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 376(2)(i) IPC for sexually assaulting a three-year-old girl.
According to the prosecution, on 30 October 2014, the accused, who was the child’s neighbour, took the victim to his house while she was playing outside. He removed her clothes, removed his own clothes, lay on top of her and rubbed his private part against her genital area, causing her pyjama to become soiled with semen.
The child immediately narrated the incident to her mother. When the mother confronted the accused, he allegedly admitted his mistake, apologised and fled from the spot.
Following investigation, the Trial Court convicted the accused for aggravated penetrative sexual assault and sentenced him to 20 years’ rigorous imprisonment.
The accused appealed before the Delhi High Court, contending that the prosecution had failed to prove penetration, which was an essential ingredient of the offences for which he had been convicted.
Issues
The High Court considered:
- Whether the prosecution proved penetrative sexual assault within the meaning of Section 3 of the POCSO Act.
- Whether the evidence established only sexual assault or an attempt to commit penetrative sexual assault.
- Whether the conviction under Section 6 POCSO Act and Section 376(2)(i) IPC was legally sustainable.
- Whether the sentence imposed by the Trial Court required modification.
Appellant’s Arguments
The appellant argued that:
- the prosecution failed to prove penetration;
- the evidence only showed rubbing of private parts;
- the essential ingredients of aggravated penetrative sexual assault were absent;
- consequently, the conviction under Section 6 POCSO Act and Section 376(2)(i) IPC was unsustainable.
He also maintained that he had been falsely implicated due to a monetary dispute with the victim’s father.
Respondent’s Arguments
The State submitted that:
- the victim’s testimony was consistent throughout;
- the mother’s evidence corroborated the child’s version;
- DNA examination established the presence of the accused’s semen on the victim’s clothing and biological samples;
- the Trial Court had rightly convicted the accused.
It was therefore argued that the conviction required no interference.
Analysis of the Law
Child’s Testimony Was Consistent
The High Court found that the statements of both the child and her mother consistently established that:
- the accused took the child to his house;
- removed both their clothes;
- rubbed his penis against the child’s genital area;
- ejaculated on her clothes.
The Court found no material contradiction regarding these core facts.
Ingredients of Penetrative Sexual Assault Not Established
The Court examined the definition of Section 3 POCSO Act, which requires penetration, however slight.
After analysing the evidence, the Court held that:
- neither the child’s testimony;
- nor the FIR;
- nor the Section 164 statement;
- nor any other evidence
established penetration.
The evidence consistently proved only rubbing of the accused’s penis against the child’s private parts.
Such conduct, though grave, did not satisfy any of the clauses constituting penetrative sexual assault under Section 3 POCSO Act.
DNA Evidence Supported Sexual Assault but Not Penetration
The Forensic Science Laboratory report established that:
- semen recovered from the victim’s clothing and biological samples matched the accused’s DNA.
The High Court held that the DNA evidence corroborated ejaculation and sexual contact.
However, it did not establish penetration, which remained an essential legal requirement for conviction under Section 3 and Section 6 POCSO Act.
Conduct Amounted to Attempt
The Court distinguished between:
- completed penetrative sexual assault; and
- attempt to commit penetrative sexual assault.
After undressing both himself and the child and rubbing his penis against her genital area, the accused had clearly progressed beyond mere preparation.
His conduct unequivocally demonstrated an intention to commit penetrative sexual assault.
Accordingly, the Court held that the offence proved was attempt to commit aggravated penetrative sexual assault punishable under Section 18 read with Section 6 of the POCSO Act, rather than the completed offence under Section 6.
Precedent Analysis
Suo Motu Writ Petition (Criminal) No. 1 of 2025
The High Court relied upon the Supreme Court’s decision explaining the distinction between preparation and attempt in sexual offences against children.
The Supreme Court held that an attempt begins when preparation ends and the accused undertakes overt acts towards commission of the intended offence.
Applying that principle, the Delhi High Court concluded that the appellant’s conduct constituted an attempt to commit penetrative sexual assault.
State of Madhya Pradesh v. Mahendra @ Golu, (2022) 12 SCC 442
The Court referred to this decision while explaining that criminal attempt commences once the accused performs acts directly connected with the intended offence after completing preparation.
The judgment formed the legal basis for altering the conviction from the completed offence to attempt.
Court’s Reasoning
The High Court held that:
- the prosecution successfully established sexual assault upon a three-year-old child;
- the victim and her mother consistently narrated the incident;
- the DNA evidence corroborated ejaculation by the accused.
However, the Court found no evidence proving actual penetration.
Since penetration is a mandatory ingredient of Section 3 POCSO Act, the conviction for aggravated penetrative sexual assault could not be sustained.
Nevertheless, the accused’s conduct clearly constituted an attempt to commit that offence.
The Court therefore modified the conviction accordingly instead of granting acquittal.
Conclusion
The Delhi High Court partly allowed the appeal.
It:
- set aside the conviction under Section 6 POCSO Act;
- convicted the appellant under Section 18 read with Section 6 POCSO Act for attempt to commit aggravated penetrative sexual assault;
- reduced the sentence from 20 years’ rigorous imprisonment to 10 years’ rigorous imprisonment.
The Court held that while penetration was not proved, the evidence overwhelmingly established an attempt to commit aggravated penetrative sexual assault upon a three-year-old child.
Key Takeaways
- Penetration remains an essential ingredient of Section 3 POCSO Act.
- Mere rubbing of private parts, even with ejaculation, does not automatically constitute penetrative sexual assault.
- Such conduct may nevertheless amount to an attempt under Section 18 POCSO Act where the evidence demonstrates clear intention and overt acts.
- DNA evidence can corroborate sexual contact but cannot substitute proof of penetration where the statute specifically requires it.
- Courts must carefully distinguish between completed offences and attempts while determining criminal liability under the POCSO Act.
Case Details
Case: Anil v. State
Court: Delhi High Court
Case Number: CRL.A. 119/2017
Judge: Justice Chandrasekharan Sudha
Reserved On: 21 July 2026
Date of Decision: 24 July 2026
Result: Appeal partly allowed. The conviction under Section 6 POCSO Act was modified to Section 18 read with Section 6 POCSO Act (attempt to commit aggravated penetrative sexual assault), and the sentence was reduced from 20 years’ rigorous imprisonment to 10 years’ rigorous imprisonment
