The Bombay High Court has held that removing a child's undergarment with sexual intent, without proceeding to any further act, amounts to an attempt to commit sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

The bench of Justice Abhay S. Waghwase passed the ruling while partly allowing an appeal filed by Ganesh Hotlappa alias Prabhakar Padampalle, who challenged his conviction under Section 354 of the Indian Penal Code and Sections 9(m) read with 10 of the POCSO Act.

In the said matter, the Court reduced the appellant's sentence from five years to three-and-a-half years of rigorous imprisonment, holding that Section 18 of the POCSO Act, which prescribes punishment for an attempt to commit an offence under the Act, applied to the facts of the case.

According to the prosecution, the accused took a three-and-a-half-year-old girl to a cattle shed and removed both her undergarment and his own. He was accused of sexually assaulting the child.

The appellant argued that the evidence did not establish the commission of sexual assault and that, even if the prosecution's allegations were accepted, the act amounted at most to an attempt to commit the offence.

The High Court noted inconsistencies between the accounts given by the child's mother and grandfather regarding what the child had disclosed. It also observed that the mother's claim of redness in the child's private parts was not supported by the medical evidence.

Examining Section 7 of the POCSO Act, the Court held that the act established by the prosecution was the removal of the child's undergarment with sexual intent. Since the accused had not proceeded beyond that act, the Court classified the conduct as an attempt to commit sexual assault.

“Removal of undergarment is the act which is shown to be proved and it is explicitly done with sexual intent… when accused has not proceeded beyond removing the undergarment, the act can be said to be an ‘attempt to commit sexual assault’,” the Court observed.

The Court further noted that since the victim was below 12 years of age, Section 9(m) of the POCSO Act, which deals with aggravated sexual assault against a child below 12 years, was attracted.

Applying Section 18 of the Act, the Court observed that the maximum prescribed imprisonment for the offence under Section 9(m) was seven years. Accordingly, the punishment for the attempt was calculated at half that term, amounting to three-and-a-half years of rigorous imprisonment.

The Court also addressed the evidentiary value of the child's statement recorded under Section 164 of the Code of Criminal Procedure, noting that the substantive testimony of the victim and her mother would prevail over the statement, which was corroborative in nature.

“...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 Court remarked.

Accordingly, the High Court partly allowed the appeal and reduced the appellant's sentence from five years to three-and-a-half years of rigorous imprisonment.