Holding Child’s Hand With Sexual Intent and Inducement Is Sexual Assault Under POCSO: Bombay HC

The Bombay High Court has upheld the conviction of a 25 year old man for sexually assaulting a 13 year old girl, reiterating that the Protection of Children from Sexual Offences Act, 2012, covers all forms of sexualised contact involving a child when accompanied by sexual intent.

The judgment underscores that even seemingly minimal physical contact, such as holding a child’s hand while making a sexual proposition, squarely attracts Section 7 punishable under Section 8 of the POCSO Act.

Justice Nivedita P. Mehta, deciding the criminal appeal, held that the act of the accused in offering money to the minor and holding her hand while asking her to allow him to “do the game,” which the child understood as an invitation for sexual intercourse, fulfilled the statutory requirement of physical contact with sexual intent as formulated in Section 7.

The Court held that the focus of the provision is on the sexualised intention behind the act rather than the degree of physical intrusion.

It affirmed that Section 42 requires courts to apply whichever statute prescribes the higher punishment, and in this case Section 8 of POCSO mandated a minimum of three years imprisonment, justifying the trial court’s decision to sentence the accused under the special law.

According to the prosecution, the victim, aged 13 at the time, was alone at home on two consecutive days in October 2015 when the accused, a neighbour whom she referred to as “Mama,” approached under the pretext of asking for water.

On the first day he offered her fifty rupees in exchange for sexual activity. On the following day he repeated the offer and held her hand, prompting her to immediately inform her maternal uncle.

The uncle lodged an FIR on the same day.

The trial court convicted the accused for offences under Sections 354 and 354A of the IPC and Section 8 of the POCSO Act, and imposed concurrent sentences of three years rigorous imprisonment for the POCSO offence and one year for the IPC offence.

The defence argued before the High Court that the evidence lacked proof of sexual intent.

It was submitted that the locality was densely populated and such incidents could not have occurred unnoticed. It was also contended that discrepancies in the timing of the incident narrated in the FIR and at trial created doubt, that the panch witness had turned hostile, and that the absence of call data records meant the prosecution version lacked corroboration.

Relying on earlier judgments of the High Court, counsel asserted that conviction under Section 8 was unsustainable.

Rejecting these submissions, the Court held that the testimony of a child victim, when cogent and trustworthy, does not require independent corroboration. The victim’s account remained consistent in all material respects. Her immediate disclosure to her maternal uncle and the prompt registration of the FIR strengthened the credibility of her version.

Minor inconsistencies relating to time, language or sequence of narration were held to be insignificant, especially in cases involving child witnesses who may struggle with precise temporal recall.

The Court found the testimonies of the maternal uncle and the mother consistent with the core allegation made by the child.

The Court placed particular emphasis on the statutory interpretation of Section 7 of POCSO.

It observed that sexual assault under the Act requires physical contact coupled with sexual intent.

Physical contact need not be intrusive or violent. It may be as simple as an act of touching if the circumstances reveal an intention to engage in sexual activity. The combination of offering money for sexual favours and physically restraining the child’s hand was, in the Court’s view, a clear demonstration of such intent.

The Court further held that inducements alone, when accompanied by physical contact, fall within the protective scope of the statute.

It was also emphasised that Section 42 mandates application of the harsher punishment when the same act attracts offences under both POCSO and IPC. Since the IPC provisions prescribe lower punishment than the mandatory minimum under Section 8, the trial court correctly applied the POCSO penalty framework.

The Court further refused to extend the benefit of the Probation of Offenders Act, observing that sexual offences against minors demand sentences that reflect the gravity of harm and safeguard societal interest.

Prior decisions relied on by the appellant were held to be distinguishable on facts, involving materially different evidentiary weaknesses not present in the present case.

Case Title: Sheikh Rafique Sk Gulab v. State of Maharashtra

Bench: Justice Nivedita P Mehta

Date of judgment: 4.12.2025.