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 Court reduced the sentence of a man convicted in a case involving a three-and-a-half-year-old girl from five years to three-and-a-half years' rigorous imprisonment, applying Section 18 of the POCSO Act.

Justice Abhay S. Waghwase was hearing an appeal challenging the appellant's conviction under Section 354 of the Indian Penal Code and Sections 9(m) read with 10 of the POCSO Act by the Additional Sessions Judge. According to the prosecution, the accused took the child to cattle shed and removed both her undergarment and his own. The prosecution alleged that he sexually assaulted her.

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

The 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 observed that the act proved by the prosecution was the removal of the child's undergarment with sexual intent. Since the accused had not proceeded beyond removing the undergarment, the Court held that the act amounted to 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.

As the victim was below 12 years of age, Section 9(m), which deals with aggravated sexual assault, was attracted. The Court further held that Section 18 of the POCSO Act applied to the case. As the longest term of imprisonment for the offence under Section 9(m) was seven years, the applicable sentence for the attempt was calculated at half that period, i.e. three-and-a-half years.

The Court noted the objection of the State, but observed that the substantive evidence of the child and her mother would prevail over the child's statement recorded under Section 164 of the Code of Criminal Procedure, 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, partly allowing the appeal, the Court modified the conviction and reduced the sentence to three-and-a-half years' rigorous imprisonment.

Case Title: Ganesh Hotlappa @ Prabhakar Padampalle v. State of Maharashtra & Anr. [Criminal Appeal No. 42 of 2026]