Introduction:

In Sheikh Rafique Sk. Gulab v. State of Maharashtra, the Bombay High Court (Nagpur Bench) examined the appeal of a 25-year-old man convicted under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act for catching hold of a 13-year-old girl’s hand while offering her money to “do the game”, a phrase later clarified by the minor to mean sexual intercourse, and Justice Nivedita P. Mehta upheld the conviction holding that such conduct fell squarely within the definition of “sexual assault” under Section 7 POCSO Act. The appellant had approached the High Court challenging his three-year rigorous imprisonment sentence imposed by the Additional Sessions Judge-2, Yavatmal in 2019, contending that the prosecution failed to prove sexual intent behind the act and arguing that mere holding of a hand should not attract POCSO charges. The prosecution, on the other hand, asserted that the appellant, who was a neighbour of the victim, approached her twice in October 2015 when her parents were at work, offering her ₹50 on both occasions while asking her to “allow him to do the game”, and on the second day forcibly caught her right hand before she raised an alarm, leading to the registration of an FIR under Sections 354, 354-A IPC and Section 8 POCSO Act. The High Court examined the evidence, the testimony of the child, and the statutory elements of sexual assault to determine whether the conviction under the POCSO Act required interference.

Arguments of the Appellant:

The appellant’s counsel argued that Section 8 of the POCSO Act, which prescribes the punishment for sexual assault, was wrongly invoked because the prosecution failed to show beyond reasonable doubt that the appellant held the minor’s hand with sexual intent, contending that the incident amounted, at best, to a mere physical touch, which by itself could not constitute sexual assault under Section 7 unless accompanied by clear sexual intent or overtly sexual contact. It was further argued that the victim omitted the term “game” in the FIR, thereby diluting the prosecution’s version, and that there was a delay between the occurrence of the incident and filing of the complaint, raising doubts about the credibility and spontaneity of the allegations. The defence asserted that minor inconsistencies in the child’s narration regarding dates and timing of the event created reasonable doubt and suggested that the FIR was influenced by parental intervention since the mother’s deposition was based on hearsay. It was submitted that the minimum sentence under Section 8 was harsh given the circumstances and that the appellant, being a young man with no prior criminal record, was deserving of leniency, including the benefit of the Probation of Offenders Act.

Arguments of the State:

The prosecution strongly opposed the appeal, submitting that the evidence on record clearly established the sexual intent behind the appellant’s conduct, particularly because the act of holding the minor’s hand was directly accompanied by an offer of money and an inducement for sexual activity, and such behaviour fell squarely within the statutory definition of sexual assault under Section 7 POCSO Act, which requires only “physical contact with sexual intent” without penetration. It was further argued that the testimony of the 13-year-old victim was consistent, trustworthy, and unembellished and that minor discrepancies regarding timing were natural in child witnesses and did not undermine the core accusation that the appellant approached her twice, made the same sexually loaded request, and on the second occasion caught her hand in an attempt to initiate further sexual activity. The prosecution emphasized that POCSO is a protective legislation intended to shield minors from all forms of sexual advances, including inducements and attempts, and therefore the statutory threshold of sexual intent was clearly satisfied. Finally, the State submitted that the severity of the offence precluded the application of the Probation of Offenders Act and that the trial court’s sentence of three years’ rigorous imprisonment—the statutory minimum under Section 8—was correct.

Court’s Judgment:

The Bombay High Court dismissed the appeal, holding that the appellant’s act of catching hold of the minor girl’s hand while simultaneously offering her money to “do the game” unmistakably revealed sexual intent and fulfilled the ingredients of sexual assault under Section 7 POCSO Act, which the Court emphasized required only two elements—physical contact and sexual intent—which were clearly established on the facts of the case. Justice Nivedita P. Mehta observed that the argument that “mere holding of a hand” could not amount to sexual assault was meritless because the act could not be isolated from the accompanying inducement for sexual activity and the express verbal invitation, and when viewed together, the conduct amounted to a deliberate attempt to involve the child in sexual activity. The Court reiterated that the testimony of a child victim in POCSO cases holds paramount evidentiary value, especially when the narrative is natural, consistent, and inspires confidence, and noted that minor discrepancies in peripheral details do not detract from the substance of the accusation. It rejected the defence contentions regarding delay and hearsay, stating that neither undermined the credibility of the prosecution’s case. The Court also held that Sections 354 and 354-A IPC were rightly applied but since Section 8 POCSO carries a higher minimum sentence, the trial court had correctly imposed three years’ rigorous imprisonment. The Court refused probation, stating that although the appellant had no prior criminal antecedents, granting probation in cases involving sexual assault on minors would defeat the purpose of sentencing under the POCSO Act, which aims to protect children from all forms of sexual misconduct. Accordingly, the appeal was dismissed and the appellant was directed to undergo the sentence imposed.