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, Live Law reported. Justice Abhay S. Waghwase partly allowed an appeal against a sessions court conviction and reduced the man's sentence from five years to three-and-a-half years' rigorous imprisonment, applying Section 18 of the POCSO Act, which covers punishment for an attempt.
The trial court had convicted the appellant under Section 354 of the Indian Penal Code and Sections 9(m) read with 10 of the POCSO Act in a case relating to a child below 12 years of age. The appellant argued that the evidence did not establish any actual sexual assault and that, even on the prosecution's own case, the act amounted at most to an attempt, CourtBook reported.
Examining the evidence, the High Court noted inconsistencies between the accounts given by family witnesses about what the child had disclosed, and observed that a claim of injury was not supported by the medical evidence. The Court found that the act proved by the prosecution was the removal of the child's undergarment with sexual intent, and that the accused had not proceeded beyond that act.
"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 quoted by Live Law.
Applying Section 18, the Court took half of the longest seven-year term prescribed for the aggravated offence under Section 9(m) and fixed the sentence at three-and-a-half years. The ruling clarifies how courts should classify cases where the proved act stops short of a completed sexual assault but is shown to have been done with sexual intent.