Removing Child’s Undergarment With Sexual Intent Attracts Attempt Liability Under POCSO: Bombay HC [Read Judgment]

Aurangabad: The Bombay High Court (Aurangabad Bench) has partly allowed the appeal of a 20-year-old convicted of aggravated sexual assault on a girl aged three and a half years, holding that where the evidence shows nothing beyond removal of undergarments, the offence is an attempt to commit sexual assault, attracting Section 18 of the Protection of Children from Sexual Offences Act, 2012. 

The Court cut the sentence from five years to three and a half years, while upholding the conviction.

Justice Abhay S. Waghwase was hearing Criminal Appeal against the judgment dated of the Special Court (POCSO), Biloli, which convicted the appellant under Section 354 of the IPC and Section 9(m) read with Section 10 of the POCSO Act. He had been charged under Section 376-AB IPC and Section 4(2) of the POCSO Act, but the trial court acquitted him of those charges, and the State did not challenge that acquittal.

According to the prosecution, on 13.06.2024 the accused took the child to a cattle shed, saying her father was there, and removed her undergarment and his own. The FIR was lodged on 15.06.2024 on the statement of the child’s mother. The appellant, through counsel Nilesh S. Ghanekar, argued that the delay raised a possibility of false implication, that the mother and the victim did not corroborate each other, that the medical evidence did not support the allegations, and that at most the case was one of attempt under Section 7, for which Section 18 would permit only half of the longest term.

The State, through APP S. M. Ganachari, contended that the victim, being barely three and a half years old, had deposed as best she could, that the accused was found at the spot in a frightened state, and sought to draw the presumption under Section 29 of the Act. The victim’s counsel, Manjusha Ware Jagtap, appointed through legal aid, supported the conviction.

On delay, the Court held that the reason was apparent from the FIR itself, namely that the child’s father was out of station and law was set in motion only on his return, adding that “in cases of such nature, delay cannot be given undue importance.”

The Court then examined the evidence. The mother said the child told her that the accused had inserted his private part in hers and that she noticed redness. The medical officer (PW5), however, found the hymen intact, with no discharge or injury, and concluded there was no penetrative sexual assault. The child’s grandfather (PW4), who claimed to have heard the same narration, deposed only that the accused had “pressed” his private part and spoke of no insertion. The Court noted that the two witnesses, “in spite of claiming to be together,” gave different versions. The child herself deposed only that the accused removed her undergarment and his own.

On this evidence the Court concluded that the only act proved was removal of the undergarment, which it found had been done with sexual intent. Section 7 requires touching or “any other Act with sexual intent which involves physical contact without penetration”. The Court held that, since the accused “has not proceeded beyond removing the undergarment, the act can be said to be an ‘attempt to commit sexual assault’.” As the victim was below 12 years, Section 9(m) was attracted, and the offence was one of attempt to commit aggravated sexual assault.

The State had argued that the victim’s statement under Section 164 CrPC and the mother’s testimony sufficed to sustain the higher offence, and that the trial court had already been lenient in awarding five years rather than seven. Rejecting this, the Court held that “it is the substantive evidence that would prevail, i.e. of the victim and her mother, and not the statement of victim under Section 164 Cr.P.C. as it is mere corroborative evidence and not substantive one.” The mother’s version did not tally with the victim’s and was not supported by the medical evidence.

Section 18 of the POCSO Act provides that an attempt is punishable with up to one-half of the longest term provided for the offence. The longest term under Section 10 is seven years, and half of that is three and a half years. The Court accordingly modified the sentence to rigorous imprisonment of three and a half years and a fine of Rs. 20,000, with six months’ further imprisonment in default, convicting him under Section 354 IPC and Sections 9(m) and 10 read with Section 18 of the POCSO Act. The remaining directions of the trial court were left intact, and the fee of the victim’s counsel was fixed at Rs. 10,000.

Appearances:

For the Appellant: Mr. Nilesh S. Ghanekar, Advocate.

For Respondent No. 1 (State): Mr. S. M. Ganachari, APP.

For Respondent No. 2 (Victim): Ms. Manjusha Ware Jagtap, Advocate (appointed through Legal Aid).

Case Title: Ganesh Hotlappa @ Prabhakar Padampalle vs. The State of Maharashtra & Anr., Criminal Appeal No. 42 of 2026, decided on 13.10.2026

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