The Sikkim High Court has held that two separate acts of touching a child's breasts during the same occurrence constitute aggravated sexual assault under Section 9(l) of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Section 9(l) applies when a person commits sexual assault on the child more than once or repeatedly. 

Justice Bhaskar Raj Pradhan observed,

"The two separate acts of touching the survivor's breasts by the appellant during the same occurrence establish the ingredients of section 9(l) of the POCSO Act which the prosecution has been able to prove by the evidence of the survivor herself. The testimony of the survivor of repeated sexual assault by the appellant on her establishes the commission of “aggravated sexual assault.”"

The observation came in a criminal appeal preferred under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the judgment dated June 10, 2025 and the order on sentence dated June 16, 2025 passed by the Special Judge (POCSO), Pakyong. By the said judgment, the appellant was convicted for the offence under Section 9(l), punishable under Section 10 of the POCSO Act, and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000.

The prosecution case was that on December 14, 2023, while the survivor was having her food, the appellant came from behind, asked her to be careful of the wire of the stove/heater and thereafter touched and pressed her breasts. When she spoke in a louder voice, he stepped back but subsequently repeated the act. The survivor informed her mother about the incident, who thereafter informed her father. The father lodged the FIR the following day.

Assailing the conviction, the appellant submitted that there were discrepancies in the statements of the survivor and her parents as to the manner in which she was touched, whether the act was repeated and the time of the alleged incident.He also questioned whether the prosecution had proved the seizure of the survivor's birth certificate. The prosecution maintained that the offence of aggravated sexual assault had been established beyond reasonable doubt.

Examining the ingredients of sexual assault under Section 7 of the POCSO Act, the High Court observed, "Therefore, the crucial ingredient of the offence of “sexual assault” is the “touch” coupled with “sexual intent”."

On the question of sexual intent, the Court held "The repeated act of the appellant of touching the survivor's breasts after a gap between the first incident and the second reflects his “sexual intent”. “Sexual intent” may be gathered from the actions of the accused during the time of the incident."

The Court further found that the foundational facts had been proved through the survivor's testimony and that the presumption under Section 30 of the POCSO Act regarding the existence of the appellant's mental state would apply against him. It noted that the appellant had not led any evidence to establish that such mental state did not exist and that his act was innocent.

Regarding the evidentiary value of the child's testimony, the Court observed, "If the learned Special Court finds the testimony reliable, consistent and trustworthy, a conviction can potentially rest on it even without medical corroboration."

The Court found that the survivor's deposition had stood firm, cogent and consistent, with no material improvement or contradiction. Her disclosure of the incident to her mother and the subsequent evidence also corroborated her testimony.

Rejecting the discrepancies pointed out by the appellant, the Court observed, "Variance in versions of the witnesses which completely destroy prosecution's case must be taken cognizance of. However, minor discrepancies which are attributable to various factors, if it does not affect the core of the prosecution's case, can be ignored, lest truth gets submerged in these trifles."

On the challenge concerning the birth certificate, the Court noted that the original certificate had been brought on record and that its contents were corroborated by the survivor, her parents, the Registrar of Births and Deaths and the school records. It held that the birth certificate was a public document carrying a presumption of correctness unless rebutted and found that the survivor was a child when the incident occurred.

Upholding the conviction, the Court noted that Section 10 of the POCSO Act prescribes a minimum sentence of five years for aggravated sexual assault and that the Special Judge had imposed the minimum punishment prescribed by law.

The appeal was accordingly dismissed, and the conviction and sentence were upheld. The compensation of Rs. 15,000 recommended for the survivor under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021 was also confirmed.

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