The Bombay High Court has held that removing a minor’s undergarments with sexual intent, without proceeding to carry out any other act, would be construed as an attempt to commit sexual assault under the Protection of Children from Sexual Offences Act.
Justice Abhay S Waghwase reduced the sentence of a man convicted under the Act in a case involving a three-and-a-half-year-old girl from five years to three-and-a-half years, Live Law reported.
The trial court had held the man, Ganesh Hotlappa, guilty of molestation and aggravated sexual assault under the POCSO Act.
Rival arguments
The prosecution had alleged that Hotlappa had sexually assaulted the girl. It alleged that he had taken her to a cattle shed, and removed her undergarment as well as his own.
The defence claimed that the evidence did not show that sexual assault took place, and even if the prosecution’s version were to be accepted, the act amounted to an attempt to commit sexual assault, Live Law reported.
Judge’s observations
The judge held that the act proved by the prosecution was that of the man removing the child’s undergarments with sexual intention. He said that as the man had not carried out any act afterwards, his actions amounted to attempted sexual assault.
The judge noted that as the girl was below 12 years of age, the case would be classified as one of aggravated sexual assault. He stated that Section 18 of the POCSO Act, which lays out the punishment for attempts to commit offences, would apply to the case.
The provision states that an attempt to commit an offence under the Act would attract punishment of up to half of the punishment for the crime in question.
The additional public prosecutor had argued that in view of the testimonies of the minor and her mother, the offence of aggravated sexual assault was clearly made out. However, the court did not agree with the contention.
“...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,” Justice Waghwase held.
