Exhibiting private parts and attempting to undress a child constitutes sexual assault under POCSO.

The appellant was tried as the sole accused in Sessions Case No. 254/2022 for allegedly sexually assaulting and attempting to disrobe PW1, a minor and his niece, at her family home on 03.04.2022 between 3:30 p.m. and 4:00 p.m. The prosecution alleged that the appellant touched PW1, unzipped his trousers, exposed his private part, and attempted to remove her clothes. PW1’s brother allegedly entered the room during the incident and PW1 subsequently disclosed the occurrence to her family

The trial court framed charges under Sections 354, 354B and 509 IPC and Sections 10 and 12 of the POCSO Act. After recording the evidence of five prosecution witnesses and one defence witness, the trial court convicted the appellant under Sections 10 and 12 of the POCSO Act and Sections 354 and 354B IPC. It sentenced him to five years’ simple imprisonment and fine under Section 10, and two years’ simple imprisonment and fine under Section 12; no separate sentence was imposed for the IPC offences in view of Section 42 of the POCSO Act

The appellant challenged the conviction principally on the grounds that the incident allegedly occurred on a Sunday when the family was ordinarily present at home, and that he had been falsely implicated because of a dispute concerning repayment of a loan of ₹50,000 advanced to PW2

The Court exercised appellate jurisdiction under Sections 415 read with 528 of the BNSS. It applied Sections 7 and 10 of the POCSO Act, under which a sexual act involving physical contact without penetration constitutes sexual assault and becomes aggravated sexual assault where the statutory aggravating circumstances are established; Section 11(i), which covers exhibiting a part of the body with sexual intent so that it is seen by the child; and Section 12, which prescribes punishment for sexual harassment under Section 11.

The Court also applied Sections 354 and 354B IPC concerning assault or criminal force with intent to outrage a woman’s modesty and assault or use of criminal force with intent to disrobe her. Under Section 42 of the POCSO Act, the more severe punishment is to prevail where the same act constitutes an offence under the POCSO Act and the IPC.

Regarding the trial court’s failure to conduct a hearing under Section 232 Cr.P.C., the Court relied on Moidu K. v. State of Kerala , 2009 SCC OnLine Ker 2888, holding that such non-compliance does not automatically vitiate the proceedings absent proof of serious and substantial prejudice to the accused.

The Court found PW1’s account in the FIR, her Section 164 Cr.P.C. statement, and her deposition to be materially consistent regarding the appellant approaching her, touching her, unzipping his trousers, exposing his private part, and attempting to remove her clothes. PW3’s testimony supported the prosecution version because he saw the appellant with his hand on PW1’s shoulder and his trousers unzipped, and observed PW1’s frightened condition immediately thereafter.

The Court held that the omission of certain details in PW1’s initial examination did not undermine her credibility, particularly since she explained the omission as attributable to the lapse of time.

The fact that the incident occurred on a Sunday did not render the prosecution case improbable. PW3 had explained that the family members did not necessarily remain at home throughout the day, and the defence had not put a specific contrary question to PW1 regarding the availability of other family members at the relevant time.

The defence theory of false implication due to a loan dispute was also rejected as improbable: if the appellant’s relationship with PW2 had become strained because of non-payment, it was unlikely that he would continue staying in her house; further, his admitted decision to miss his train and return to the house suggested intentions beyond merely recovering the alleged loan.

Applying Sections 7 and 11(i) of the POCSO Act, the Court held that the appellant’s conduct was sexual in nature and involved both physical contact with sexual intent and exhibition of his private part to the child. His attempt to undress himself and PW1 also satisfied the ingredients of Sections 354 and 354B IPC.

The Court found no material inconsistency or infirmity in the prosecution evidence and no prejudice resulting from the omission to conduct a Section 232 Cr.P.C. hearing.

Finding no infirmity in the judgment of conviction or order on sentence, the Court dismissed the appeal and closed all pending applications.