POCSO | Rubbing Penis Against Child's Private Parts Constitutes Attempt To Commit Penetrative Sexual Assault: Delhi HC
Delhi High Court ruled that rubbing the penis against a three-year-old child's private parts after undressing both the accused and the victim amounted to an attempt to commit aggravated penetrative sexual assault under the POCSO Act
Court held that although rubbing the accused's penis against the three-year-old victim's private parts did not amount to penetrative sexual assault under Section 3 of the POCSO Act, it clearly constituted an attempt to commit aggravated penetrative sexual assault punishable under Sections 18 and 6 of the Act
The Delhi High Court has held that an accused who undressed himself and a three-year-old child before rubbing his penis against the child's private parts had crossed the stage of preparation and committed an attempt to commit aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, even though actual penetration was not proved.
Justice Chandrasekharan Sudha observed that while the alleged act did not satisfy the definition of "penetrative sexual assault" under Section 3 of the POCSO Act, it nevertheless demonstrated an unequivocal attempt to commit that offence.
"It is true that this act does not come under any of the clauses of Section 3 POCSO Act. But it certainly demonstrates an attempt to commit penetrative sexual assault" the Court held.
The case concerned a three-year-old girl who alleged that the accused, her neighbour, took her to his house, made her lie down, rubbed his penis against her urinary part and soiled her pyjamas.
Her testimony was corroborated by her mother's account and the prosecution evidence, including the forensic report showing the presence of the accused's DNA on the child's clothes and vaginal samples.
Examining Section 3 of the POCSO Act, the Court held that mere rubbing of the penis against the child's private parts, without penetration, did not constitute penetrative sexual assault under clauses (a) to (d) of the provision.
Consequently, the conviction under Section 6 of the Act for aggravated penetrative sexual assault could not be sustained.
However, relying upon the Supreme Court's judgment in Suo Moto Writ Petition (Criminal) No. 1/2025, the bench drew a distinction between "preparation" and "attempt".
"There is a distinction between “preparation” and “attempt” to commit an offence and it all depends on the statutory edict coupled with the nature of evidence produced in a case. The stage of “preparation” consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. An “attempt” to commit the offence, starts immediately after the completion of preparation. “Attempt” is the execution of mens rea after preparation. “Attempt” starts where “preparation” comes to an end, though it falls short of actual commission of the crime" the Delhi HC observed.
Considering that the accused in the present case had moved well beyond preparation by undressing both himself and the child and proceeding to rub his penis against her private parts, Justice Sudha held that the accused’s intention to commit penetrative sexual assault was clear.
“He reached the stage much after preparation and his intention is clear from the overt act committed. He did enter the stage of attempting penetrative sexual assault" the Court noted.
Since the victim was below 12 years of age, the Court held that the offence made out was attempt to commit aggravated penetrative sexual assault, punishable under Section 18 read with Section 6 of the POCSO Act.
Accordingly, while partly allowing the appeal, the High Court modified the appellant's conviction from Section 6 POCSO to Section 18 read with Section 6 POCSO.
Observing that the accused was old enough to be the victim's father and that no leniency was warranted, the Court reduced the sentence from 20 years' rigorous imprisonment to 10 years' rigorous imprisonment.
Case Title: Anil v. State
Bench: Justice Chandrasekharan Sudha
Judgment Date: July 24, 2026
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