Repeated sexual touching during the same incident amounts to aggravated sexual assault under POCSO, Sikkim HC holds

The appellant was convicted by the Special Judge (POCSO), Pakyong, under Sections 9(l) and 10 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”), for committing aggravated sexual assault upon the survivor, and was sentenced to five years’ rigorous imprisonment and a fine of ₹2,000, with set-off for the period already undergone.

Compensation of ₹15,000 was also recommended for the survivor.

The prosecution case was that on 14 December 2023, while the survivor was eating in the kitchen, the appellant approached her from behind and touched and pressed her breasts on two occasions.

The survivor disclosed the incident to her mother, who informed the survivor’s father; the father lodged the FIR on the following day.

The survivor’s statement under Section 164 of the CrPC and her testimony before the trial court were substantially consistent.

The appellant challenged the conviction on the grounds of discrepancies in the description of the touching, absence of an express allegation of repetition in the FIR, variation regarding the time of occurrence, and alleged failure to prove seizure of the survivor’s birth certificate.

1. Whether the appellant’s acts of touching and pressing the survivor’s breasts constituted “sexual assault” involving sexual intent under Section 7 of the POCSO Act?

2. Whether the two acts committed during the same occurrence amounted to “aggravated sexual assault” under Section 9(l), punishable under Section 10 of the POCSO Act?

3. Whether the discrepancies concerning the description of the assault, its timing, and the contents of the FIR created a reasonable doubt regarding the prosecution case?

4. Whether the prosecution had sufficiently proved that the survivor was below eighteen years of age on the date of the incident?

5. Whether the sentence of five years’ rigorous imprisonment could be reduced below the statutory minimum?

The Court applied Section 7 of the POCSO Act, which defines sexual assault as touching the vagina, penis, anus or breasts of a child, or undertaking any act involving physical contact without penetration, when accompanied by sexual intent.

Under Section 9(l), sexual assault committed on a child “more than once or repeatedly” constitutes aggravated sexual assault, punishable under Section 10, which prescribes imprisonment of not less than five years.

Section 30 of the POCSO Act permits a presumption regarding the existence of the requisite mental state once the foundational facts are established, subject to rebuttal by the accused.

The Court relied on Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, for the principles governing reliance on the testimony of a “sterling witness,” particularly consistency on the core features of the occurrence.

It further applied the principle that minor discrepancies, which do not affect the core prosecution case, are insufficient to discredit otherwise reliable testimony.

A birth certificate issued by a competent authority is a public document carrying a presumption of correctness unless rebutted.

The Court also noted that seizure under Section 102 CrPC need not necessarily be made in the presence of witnesses, their presence being a matter of caution.

The Court found the survivor’s testimony cogent, internally consistent and materially corroborated by her prompt disclosures to her mother and father, her statement under Section 164 CrPC, and the medical history recorded during examination.

The appellant’s touching and pressing of the survivor’s breasts, particularly after she had reacted adversely to the first act, established both physical contact and sexual intent under Section 7; the subsequent offer of ₹100 further supported the inference of sexual intent.

Since the appellant committed two distinct acts of touching during the occurrence, the statutory requirement of assault “more than once or repeatedly” under Section 9(l) was satisfied.

The discrepancies relied upon by the defence were treated as minor variations: the FIR was lodged by the father based on information received indirectly, was not required to contain every detail, and the variations regarding the wording and time did not undermine the core allegation.

The survivor’s minority was established through the original birth certificate, evidence from her parents, the Registrar of Births and Deaths, school records and related official registers, all of which recorded her date of birth as 20 January 2008.

Once the foundational facts were proved, the presumption under Section 30 applied, and the appellant led no evidence to rebut the requisite mental state.

Finally, because Section 10 mandates a minimum sentence of five years, the Court held that the sentence could not be reduced below that threshold.

The survivor’s testimony was reliable, the alleged discrepancies were immaterial, the survivor’s age was duly proved, and the prosecution established the requisite sexual intent and repeated acts of assault.

The appeal was dismissed; the judgment dated 10 June 2025 and order on sentence dated 16 June 2025 were affirmed.

The sentence of five years’ rigorous imprisonment and the fine of ₹2,000 were upheld, and the compensation of ₹15,000 recommended for the survivor under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021 was confirmed.