Making small child touch private parts is aggravated sexual assault: Delhi High Court

New Delhi: Making a small child touch one's private parts with sexual intent is aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, the Delhi High Court has held.

Justice Neena Bansal Krishna passed the verdict while dismissing a man's appeal against his conviction and sentence under Section 10 (punishment for aggravated sexual assault) of POCSO for flashing his private part before a girl aged around four years and making her touch it.

Under POCSO, sexual assault on a child below twelve years of age amounts to aggravated sexual assault.

The appellant, a tenant in the minor's house, was convicted by the trial court in July 2024 and consequently sentenced to seven years' rigorous imprisonment.

The incident took place in June 2022.

"Making a small child touch the private part with sexual intent amounts to aggravated sexual assault and therefore, the offence under Section 10 POCSO Act, was established," the court held.

"There is no merit in the Appeal, which is hereby dismissed along with pending Applications, if any," it ordered.

In the judgment passed on January 5, the court rejected the accused's claim of the survivor being tutored and lack of incriminating evidence against him, as it held that the core allegation of sexual assault remained consistent in the survivor's testimonies and minor variations in expression did not affect her credibility.

It also observed that counselling by the DCW counsellor, as per the legal mandate, could not be said to be tutoring, as it was done to help the survivor, who was three years and 11 months old at the time of the incident, deal with the trauma.

"The entire narration of the incident, along with the presence of the appellant throughout, especially when the incident was narrated by the child to the mother and also that he himself reached the Police Station, even before the complainant and family did, reflect the truthfulness of the testimony of the child and her mother," the court said.

The court also refused to accept the accused's defence of delay in registration of FIR, holding that the delay had been sufficiently explained and could not be held to be fatal as it was "natural" for the minor's mother to await her husband's return from another city before approaching the police.

It agreed with the trial court's observations on the issue of sexual abuse of children being seldom reported due to shame, guilt and family honour, especially when the abuser was a known person.

It noted that normalisation of abuse in society is so endemic that it is only when the abuse is perceived to be gruesome and serious, involving penetration or bad touch, that both children and families pay attention and speak up.

In the appeal, the court, however, set aside the conviction and sentence of the appellant for certain offences, like sexual harassment, under the Indian Penal Code since no charge had been framed for the same.