[POCSO case] Delhi High Court alters sentence of man, orders release as imprisonment exceeds max punishment
![[POCSO case] Delhi High Court alters sentence of man, orders release as imprisonment exceeds max punishment](https://lawbeat.in/sites/default/files/news_images/Dhc + Jasmeet Singh_1.jpg "[POCSO case] Delhi High Court alters sentence of man, orders release as imprisonment exceeds max punishment")
The single-judge bench held that a man accused of sexually abusing a minor cannot be punished under Section 6 of the POCSO Act for the offence of 'aggravated penetrative sex when the alleged act falls short of 'penetration'.
Justice Jasmeet Singh of the Delhi High Court on Wednesday altered the sentence of a man convicted under the Prevention of Child from Sexual offences (POCSO) Act for abusing a minor and held that sexual assault without penetration is only an attempt to rape, and will fall under Section 9(m) of POCSO Act as “aggravated sexual assault”.
The court was hearing an appeal filed by one Mohd Azizul against conviction for aggravated penetrative sexual assault on a three-year-old minor girl. He was sentenced to rigorous imprisonment for 14 years and a fine of rupees one thousand.
Observing that the prosecution failed to prove foundational facts regarding penetration as per the POCSO Act, the court stated that no penetration occurred while the appellant assaulted the victim and the presence of sperm on the victim's underwear could not be denied as an attempt to rape.
However, Court noted that the Medico-legal case (MLC) and the mother's statement under S.164 CrPC indicated that there was “no penetration”.
“I understand and sympathize with the fact that a three-year-old may not be called to court for her examination, and her vocabulary and understanding of the situation itself would fall short of describing the incident clearly and in its entirety; however, in the absence of any evidence or testimony alleging penetration, the Appellant cannot be held liable/guilty under Section 6 of the POCSO”, the court further stated.
Furthermore, the Court stated that without penetration, it was only an attempt to rape or aggravated sexual assault under Section 9(m) of the POCSO Act, as the ingredients to prove an intent to commit rape were proven before the trial court and were not successfully rebutted by the Appellant herein.
The court, thus altered the appellant's conviction from aggravated penetrative sexual assault under S.6 to aggravated sexual assault under S.9 of the POCSO Act and ordered the man to be released as he had undergone 8 years and 8 months of his sentence, exceeding the maximum sentence under S.10 of the Act.
Accordingly, the Court disposed of the petition.
Case Title: Mohd Azizul v. State