The Bombay High Court has affirmed that the Protection of Children from Sexual Offences Act, 2012 applies to attempts at sexual assault against minors, even in the absence of medical corroboration, reinforcing the primacy of the victim’s testimony in child sexual abuse cases. The Court modified the sentence from ten years to five years, factoring in time already served, while upholding the conviction.
Background & Facts
The Dispute
The appellant, Anna alias Bhaurao Prabhakar Gadale, a 26-year-old labourer at the time of the incident, was charged with attempting to rape a four-year-old girl on 31.10.2018. The prosecution alleged that while the child was playing near a sugar factory in Kaij, Beed, the appellant lured her away under the pretext of catching crabs, removed her undergarment, and placed his penis on her private part before being interrupted by her parents.
Key Facts
- The victim, a female child aged four years on 31.10.2018, was playing with other children near the factory.
- The appellant approached the children and asked the victim to accompany him for crab-catching, while sending the other children away.
- The victim was taken to a field called ‘Nangartas’, where the appellant removed her undergarment and his own clothing.
- The victim’s parents, PW1 and PW3, discovered her missing and were informed by her nephew Pratik that the appellant had taken her.
- Upon reaching the spot, the parents found the appellant hastily putting on his clothes and the victim crying with her undergarment removed.
- The victim, PW4, testified in court that the appellant had placed his "urinal part" on her "urinal part".
- A medical examination (Exh.32) conducted by PW5, Dr. Balasaheb Savant, found no physical injuries or signs of penetration.
- No independent eyewitnesses to the act were examined, including the other children present.
- The appellant had no prior criminal record.
Procedural History
- 31.10.2018: Alleged incident occurred at Nangartas field, Kaij, Beed.
- 01.11.2018: Crime No.542/2018 registered at Kaij Police Station.
- 15.12.2018: Charge sheet filed under Sections 376(2)(i), (j), (k) IPC and Sections 4, 6 POCSO Act.
- 22.06.2022: Special Judge, Ambajogai, convicted the appellant under Section 18 read with Section 6 of POCSO Act and Section 511 read with Section 376(2) IPC.
- 22.06.2022: Sentenced to rigorous imprisonment for one-half of life imprisonment (10 years) and a fine of Rs.10,000.
- 27.03.2026: Appeal heard and reserved by the Bombay High Court, Aurangabad Bench.
- 01.04.2026: Judgment pronounced.
The Parties' Positions
Appellant: Argued that the prosecution case rested solely on the testimony of the victim and her parents, with no independent corroboration. Highlighted the absence of medical evidence of penetration and the fact that the victim had no prior animosity towards him. Emphasized his young age and four years already served in custody, urging leniency under the reformative principle.
Respondent State & Victim: Contended that the victim’s testimony was consistent, credible, and inspiring confidence. Stressed that the POCSO Act does not require medical proof for conviction in cases of sexual assault on minors. Argued that the attempt was grave and the sentence was justified given the vulnerability of the victim.
Relief Sought
The appellant sought reduction of the sentence from ten years to the period already undergone (four years), with immediate release. The State sought dismissal of the appeal and confirmation of the trial court’s sentence.
The Legal Issue
The central question was whether an attempt to commit rape of a minor, as described under Section 511 read with Section 376(2) IPC and Section 6 of the POCSO Act, can be established without medical evidence of penetration, relying solely on the testimony of the child victim and her parents.
Arguments Presented
For the Appellant
The appellant’s counsel relied on Suresh @ Pintya Kashinath Kamble v. State of Maharashtra and Sudhir S/o Govindrao Suradkar v. State of Maharashtra to argue that the sentence of ten years was excessive given the absence of penetration and the appellant’s lack of prior criminal history. He emphasized that the victim’s testimony, while emotionally compelling, lacked corroboration and that the medical report conclusively negated physical injury or penetration. He urged the Court to apply the reformative theory of punishment and release the appellant after accounting for time served.
For the Respondent
The State and the victim’s counsel argued that the POCSO Act is a protective statute designed to prioritize the child’s testimony over rigid evidentiary norms. They cited the Supreme Court’s jurisprudence that the testimony of a child victim, if trustworthy and consistent, is sufficient for conviction. They pointed out that the appellant’s conduct - luring the child away, removing clothing, and attempting penetration - clearly constituted an attempt under Section 511 IPC, regardless of medical findings.
The Court's Analysis
The Court acknowledged the absence of medical evidence of penetration but held that the POCSO Act does not mandate such proof for establishing an offence. The Court emphasized that Section 6 of the POCSO Act criminalizes sexual assault, which includes any act with sexual intent, and Section 18 extends liability to attempts. The Court noted that the victim’s testimony, though simple and untechnical, was consistent across multiple examinations and aligned with the parents’ accounts.
"There is evidence suggesting to attempt to commit rape. As stated above, there is no challenge to the age of victim and therefore provisions of POCSO Act is automatically get attracted. Even Medical Expert has stated that, there is no offence of rape, but in the light of evidence of victim coupled with that of parents, it is an attempt to commit rape."
The Court distinguished between the offence of rape and attempt to rape. While penetration is essential for rape under Section 376 IPC, an attempt under Section 511 IPC requires only a substantial step towards commission. The Court found that removing the child’s undergarment and positioning his body for penetration constituted such a step.
Regarding sentencing, the Court applied the precedent in Suresh @ Pintya Kashinath Kamble, which held that imprisonment for life under Section 57 IPC is equivalent to 20 years, making half of it 10 years. However, the Court exercised its discretion under Section 374 CrPC to modify the sentence, noting the appellant’s age (30 at time of appeal), lack of criminal antecedents, and the fact that he had already served four years. The Court adopted a reformative approach, concluding that five years total imprisonment - four already served plus one additional year - was proportionate and sufficient.
The Verdict
The appellant’s conviction under Section 18 read with Section 6 of the POCSO Act and Section 511 read with Section 376(2) IPC was upheld. The sentence of ten years’ rigorous imprisonment was reduced to five years. The period of four years already undergone was set off under Section 428 CrPC. The appellant shall serve one additional year of rigorous imprisonment and shall be set at liberty upon completion, provided he is not detained in any other case. The fine of Rs.10,000 was upheld. The fees of the court-appointed counsel for the victim were directed to be paid by the High Court Legal Services Sub-Committee, Aurangabad.
What This Means For Similar Cases
Victim Testimony Alone Can Sustain POCSO Convictions
- Practitioners must argue that medical evidence is not a prerequisite for conviction under POCSO Act for sexual assault or attempt.
- Courts are bound to treat child testimony with sensitivity and accept it if consistent, even if uncorroborated.
- The absence of physical injuries does not negate the occurrence of sexual intent or attempt.
Sentencing in POCSO Attempt Cases Requires Proportionality
- While the law mandates strict punishment, courts may reduce sentences based on reformative principles if the attempt did not culminate in penetration.
- Time served must be fully accounted for under Section 428 CrPC.
- A sentence of half-life imprisonment (10 years) is not automatic; proportionality and individual circumstances must be weighed.
Attempt Under Section 511 IPC Is Distinct from Completed Rape
- Any substantial act towards commission of rape - such as removing clothing, positioning the body, or verbal threats - can constitute an attempt.
- Prosecutors must frame charges under Section 511 IPC alongside POCSO provisions when penetration is not proven.
- Defence counsel should focus on the degree of completion to argue for sentence reduction, not acquittal.
