Catching Hold Of Child's Hand & Offering Money For Sexual Favours Amounts To 'Sexual Assault' Under POCSO Act : Bombay High Court

A bench of Justice Nivedita P Mehta thus dismissed an appeal filed by a 25-year-old man and affirmed his conviction and also refused to grant him the benefit of probation while taking into account the seriousness of the offences.

Case in brief

The convict-appellant moved the HC challenging a 2019 judgment of conviction passed by the Additional Sessions Judge-2, Yavatmal wherein he was sentenced to undergo rigorous imprisonment for 3 years.

It was the prosecution's case that the appellant, a neighbor of the 13 year-old victim approached her twice in October 2015 with sexual intent while her parents were away at work.

On the first occasion, he requested a glass of water and offered the minor Rs. 50, asking her to "allow him to do the game", a phrase the victim later explained meant an invitation to sleep with him.

On the second day, the accused repeated the act but this time proceeded to catch hold of the victim's right hand while making the same offer. The girl jerked her hand away and raised an alarm and thereafter, a FIR was lodged under Sections 354 and 354- A and Section 8 POCSO Act.

In his appeal, the counsel for the appellant-convict argued that Section 8 POCSO Act was not attracted as the prosecution failed to prove that the appellant caught hold of the victim with sexual intent.

It was suggested that mere physical contact of holding a hand should not attract the stringent provisions of the POCSO Act.

It was also contended that there was a delay in filing the FIR and the victim had omitted the word 'game' while attributing guilt to the applicant during lodging of the FIR.

On the other hand, the counsel for the state opposed the appeal and submitted that the evidence clearly established that the appellant had held the victim's hand with sexual intent.

High Court's order

Justice Mehta, at the outset, observed that the act of catching hold of the hand of a minor child, when viewed in the context of the accompanying offer of money and the invitation to "do the game," unmistakably demonstrated sexual intent.

"The act of catching hold of the hand of a minor child, accompanied by an offer of money and an invitation to engage in sexual activity, unmistakably demonstrates sexual intent", the Court held.

The Bench clarified that such conduct satisfies the ingredients of Section 7/8 of the POCSO Act, which defines sexual assault as physical contact coupled with sexual intent.

The Court noted that the argument that "mere holding of hand without further physical assault cannot constitute an offence is without merit".

The single judge also asserted that the POCSO Act is designed to protect children from sexual assault "in all its forms, including attempted or inducement-based acts".

In its detailed reasoning, the High Court reiterated the legal principle that in cases arising under the POCSO Act, the testimony of the child victim occupies a "position of paramount importance".

The Court found the 13-year-old victim's account to be "clear, consistent and natural" and her narration to be spontaneous and free from embellishment.

Although the defence highlighted minor discrepancies regarding the timing of the incidents and the fact that the victim's mother gave hearsay evidence, the Court said that these minor variations did not vitiate the prosecution's case.

The Court observed thus: "The core fact remains that the appellant attempted to induce sexual activity and physically restrained the victim's hand, which forms the substance of the offence".

The Court also found that the charges under Sections 354 and 354-A IPC were attracted in the case.

The court noted that since Section 8 of the POCSO Act provided for a minimum sentence of 3 years and this provision is more stringent than the punishment under Section 354-A IPC, the trial court was right in sentencing the appellant under the POCSO Act.

Furthermore, the High Court denied him the benefit of the Probation of Offenders Act as it reasoned that though he had no criminal history to his name, the seriousness of offences involving sexual assault on a minor required a balance to be struck between the interests of the accused and those of society.

"Granting the benefit of probation in such circumstances would be contrary to the object and purpose of sentencing in cases of this nature," Justice Mehta remarked.

The appeal was thus dismissed and the appellant was directed to undergo the sentence as awarded by the Trial Court.

Shyam R. Jaiswal, Advocate (Appointed) for the Appellant

Adll.P.P. Amit Chutke, for the Respondent