Introduction:
The Bombay High Court has held that removing a child’s undergarment with sexual intent can constitute an attempt to commit sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), even when the accused does not proceed to any further act. The Court clarified that where the prosecution establishes the deliberate removal of a child’s undergarment with the requisite sexual intent, the conduct may cross the threshold from mere preparation to an attempt to commit the offence.
Justice Abhay S. Waghwase delivered the ruling while hearing Criminal Appeal No. 42 of 2026 filed by Ganesh Hotlappa alias Prabhakar Padampalle against the State of Maharashtra and another. The appeal challenged the appellant’s conviction under Section 354 of the Indian Penal Code (IPC) and Sections 9(m) read with 10 of the POCSO Act, imposed by the Additional Sessions Judge. The High Court partly allowed the appeal and modified the sentence, reducing the term of rigorous imprisonment from five years to three-and-a-half years.
The case concerned a three-and-a-half-year-old girl. According to the prosecution, the appellant took the child to a cattle shed and removed both her undergarment and his own. The prosecution alleged that he sexually assaulted the child. The allegations were examined during the trial, which resulted in the appellant’s conviction and a sentence of five years’ rigorous imprisonment.
The appellant challenged the conviction and sentence, disputing whether the evidence established the commission of sexual assault. His principal contention was that, even if the prosecution’s version were accepted, the proved conduct did not establish an actual sexual assault and could, at most, amount to an attempt to commit the offence. This distinction was central to the appeal because the legal consequences of a completed offence and an attempt to commit that offence are not necessarily the same.
The POCSO Act was enacted to protect children from sexual assault, sexual harassment and pornography, while providing a legal framework for addressing offences against minors. Section 7 defines sexual assault in terms of specified physical contact with sexual intent, without penetration, while Section 9 identifies circumstances that aggravate certain forms of sexual assault. Section 10 prescribes punishment for aggravated sexual assault. Section 9(m) specifically addresses sexual assault committed against a child below 12 years of age.
The question before the High Court was not simply whether the alleged conduct was inappropriate or whether the child was vulnerable. The Court had to assess what the evidence established, whether the proved act amounted to a completed sexual assault or an attempt, and what punishment followed from that classification. Section 18 of the POCSO Act, which provides for punishment for attempting to commit an offence under the Act, became particularly important to the determination of the appropriate sentence.
The Court also considered the evidentiary record, including inconsistencies between the accounts given by the child’s mother and grandfather about what the child had disclosed, as well as the absence of medical support for the mother’s assertion that the child’s private parts had become red. These matters formed part of the Court’s assessment of the precise conduct proved by the prosecution.
Another issue concerned the evidentiary value of the child’s statement recorded under Section 164 of the Code of Criminal Procedure. The Court emphasised that the substantive evidence given by the victim and her mother had to be distinguished from the earlier statement, which was corroborative in nature. This distinction was relevant to determining which evidence should form the basis of the Court’s assessment.
Ultimately, the Bombay High Court concluded that the act proved was the removal of the child’s undergarment with sexual intent. Since the accused had not proceeded beyond that act, the Court treated the conduct as an attempt to commit sexual assault rather than as the completed offence alleged. Because the child was below 12 years of age, the Court applied Section 9(m) to determine the relevant offence and considered Section 18 when fixing the sentence. It consequently reduced the term of rigorous imprisonment from five years to three-and-a-half years.
The judgment highlights the need to distinguish between a completed offence and an attempt while ensuring that conduct directed towards a sexual offence against a child is assessed under the applicable statutory framework. It also demonstrates how the classification of an act can materially affect the punishment imposed, even where the Court recognises the seriousness of the conduct and the vulnerability of the child.
Arguments of the Parties:
The appellant, Ganesh Hotlappa alias Prabhakar Padampalle, challenged the conviction recorded by the Additional Sessions Judge under Section 354 of the IPC and Sections 9(m) read with 10 of the POCSO Act. His challenge centred on the sufficiency of the evidence to establish that a completed sexual assault had occurred. He argued that the prosecution had not proved an actual sexual assault and that, even if the allegations were accepted, the conduct could at most be classified as an attempt to commit sexual assault.
This argument raised an important distinction in criminal law between conduct that completes the elements of an offence and conduct that advances towards its commission but falls short of completion. The appellant’s position was that the evidence should be assessed according to the precise act established, rather than treating the alleged incident as a completed offence merely because it involved a child and conduct of a sexual nature.
The prosecution alleged that the appellant took the three-and-a-half-year-old girl to a cattle shed and removed both her undergarment and his own. It further alleged that he sexually assaulted the child. These allegations formed the factual basis of the charges and the conviction entered by the trial court. The prosecution’s case was therefore that the appellant’s conduct attracted the relevant provisions of the IPC and the POCSO Act.
The prosecution evidence included accounts concerning what the child had disclosed to family members. However, the High Court noted inconsistencies between the versions attributed to the child’s mother and grandfather. The mother also claimed that the child’s private parts had become red, but the medical evidence did not support that assertion. These aspects of the record were relevant to determining the precise nature of the act that could safely be treated as proved.
The State opposed the relief sought by the appellant, although the available case summary does not set out the State’s complete submissions in detail. The Court nevertheless recorded the State’s objection in the course of considering the evidentiary issue concerning the victim’s statement under Section 164 of the Code of Criminal Procedure. It would be inappropriate to attribute additional arguments to the State beyond those reflected in the available account.
The evidentiary question required the Court to consider the relationship between the child’s substantive testimony and her earlier statement recorded under Section 164. The Court explained that substantive evidence, including the testimony of the victim and her mother, would prevail over the earlier statement, which served a corroborative function. The distinction was important because a statement recorded during an investigation or judicial process does not automatically replace testimony given as substantive evidence at trial.
The appellant’s challenge also had consequences for sentencing. If the proved act amounted to an attempt rather than a completed aggravated sexual assault, Section 18 of the POCSO Act would become relevant. The legal issue was therefore not limited to whether the conviction could be maintained in its existing form. It also concerned the correct statutory classification of the act and the punishment applicable to that classification.
The appellant’s case, in substance, invited the High Court to distinguish the allegations initially made from the conduct established by the evidence. The Court had to decide whether the record supported the trial court’s treatment of the offence as completed or whether the proved act should instead be classified as an attempt. This required the Court to consider the statutory definition of sexual assault, the aggravating circumstance arising from the victim’s age and the specific provision governing attempts under the POCSO Act.
The prosecution’s allegations were serious because they concerned a very young child and conduct allegedly undertaken with sexual intent. Yet the Court’s task was to determine criminal liability and punishment according to the evidence and the language of the statute. The gravity of the allegation could not remove the need to identify the precise offence established, just as the absence of further acts did not necessarily mean that the conduct was legally insignificant.
Accordingly, the competing positions raised two connected questions: whether the evidence established a completed sexual assault and, if it did not, whether the proved conduct amounted to an attempt punishable under the POCSO Act. The High Court resolved those questions by focusing on the removal of the child’s undergarment with sexual intent and applying the statutory provision governing attempts.
Court’s Judgment:
Justice Abhay S. Waghwase examined the evidence and the relevant provisions of the POCSO Act to determine the nature of the act established against the appellant. The High Court distinguished between the allegation that a sexual assault had been completed and the conduct that the evidence actually proved. It concluded that the removal of the child’s undergarment with sexual intent amounted to an attempt to commit sexual assault, as the accused had not proceeded beyond that act.
The Court’s reasoning began with the nature of the conduct attributed to the appellant. The child was three-and-a-half years old, and the prosecution alleged that the appellant had taken her to a cattle shed and removed her undergarment and his own. Although the prosecution alleged sexual assault, the Court assessed the evidence to identify the act that could be treated as established. It did not regard the mere seriousness of the accusation as sufficient to dispense with this exercise.
The Court noted inconsistencies between the accounts given by the child’s mother and grandfather concerning what the child had disclosed to them. It also considered the mother’s assertion that redness had appeared on the child’s private parts, observing that the medical evidence did not support that claim. These evidentiary shortcomings were relevant to the Court’s assessment of the extent of the conduct proved. They did not, however, mean that the act of removing the child’s undergarment with sexual intent could be disregarded.
The central statutory provision considered by the Court was Section 7 of the POCSO Act, which defines sexual assault. The provision addresses specified physical contact with a child undertaken with sexual intent, in the absence of penetration. The Court considered the conduct established in the case against this statutory framework and concluded that the proved act was the removal of the child’s undergarment with sexual intent.
The Court observed that the appellant had not proceeded beyond removing the undergarment. It therefore classified the conduct as an attempt to commit sexual assault. In doing so, the Court distinguished the act that had been proved from the further conduct that would have been necessary to establish the completed offence as alleged.
The significance of this finding lies in the distinction between preparation, attempt and completion. Criminal law does not treat every preliminary step towards an offence as an attempt. The precise point at which conduct crosses that threshold depends on the applicable statutory provisions and the facts of the particular case. Here, the Court considered the deliberate removal of the child’s undergarment, accompanied by sexual intent, sufficient to constitute an attempt, even though the accused had not proceeded to a further act.
The Court’s conclusion makes clear that an accused cannot necessarily escape liability merely because the intended sexual offence was not completed. Where the conduct has progressed beyond mere preparation and amounts to an attempt under the applicable law, criminal liability may arise even in the absence of the completed act. The Court applied that principle to the specific conduct proved in the case rather than treating the absence of a further act as a complete answer to the prosecution.
The next question concerned the aggravating circumstance arising from the victim’s age. Section 9(m) of the POCSO Act identifies sexual assault committed against a child below 12 years of age as aggravated sexual assault. Since the victim was only three-and-a-half years old, the Court considered the statutory provision applicable to the offence in determining the punishment framework.
Section 10 prescribes the punishment for aggravated sexual assault under Section 9. The Court’s consideration of Section 9(m), read with Section 10, was therefore relevant to identifying the punishment associated with the offence that the prosecution had sought to establish. However, because the Court classified the proved conduct as an attempt, it also had to consider the separate statutory provision governing attempts under the POCSO Act.
That provision is Section 18, which prescribes punishment for attempting to commit an offence punishable under the Act. Under Section 18, the punishment for an attempt may extend to one-half of the imprisonment for life or, as applicable, one-half of the longest term of imprisonment provided for the completed offence, or a fine, or both, as specified by the provision.
The Court applied Section 18 to the offence in question. As the longest term of imprisonment provided for the relevant offence was seven years, the Court calculated one-half of that term as three-and-a-half years. It consequently held that the appropriate term of rigorous imprisonment for the attempt was three-and-a-half years, rather than the five years imposed by the trial court.
This aspect of the judgment demonstrates why the distinction between a completed offence and an attempt can have a direct impact on sentencing. The Court did not treat the attempt as legally insignificant. Instead, it applied the specific punishment provision enacted for attempts and calculated the sentence by reference to the maximum term prescribed for the underlying offence. The reduction in imprisonment followed from the statutory framework rather than from a conclusion that the conduct was harmless or acceptable.
The Court also addressed the evidentiary status of the child’s statement recorded under Section 164 of the Code of Criminal Procedure. In considering the objection raised by the State, Justice Waghwase distinguished between substantive evidence and a prior statement that serves a corroborative purpose.
The Court observed that the substantive evidence of the victim and her mother would prevail over the child’s statement under Section 164 CrPC, which was corroborative in nature. In its words, the substantive evidence was that of the victim and her mother, rather than the statement recorded under Section 164, because the latter was not substantive evidence in itself.
This distinction reflects an established evidentiary principle. A statement recorded under Section 164 CrPC may be relevant when assessing a witness’s testimony, including for corroboration or contradiction in accordance with the applicable law. However, such a statement does not ordinarily replace the witness’s substantive testimony at trial. The court must assess the evidence in the legally appropriate manner and determine the weight to be attached to the material before it.
In the present case, the Court considered the substantive evidence alongside the inconsistencies in the accounts concerning the child’s disclosure and the absence of medical support for the alleged redness. Its task was to identify what the evidence established and to apply the relevant legal provisions to those findings. The distinction between substantive testimony and the earlier statement formed part of that assessment.
The Court’s approach also illustrates that the application of child-protection legislation requires careful attention to both the protective purpose of the law and the elements of the offence charged. The POCSO Act provides specific offences and enhanced consequences for conduct involving children, including aggravating circumstances based on a victim’s age. At the same time, the nature of the act proved and the statutory basis for punishment must be clearly identified.
The victim’s very young age was significant because it brought the case within the aggravated category identified by Section 9(m). The Court did not disregard that circumstance when determining the applicable punishment. Instead, it considered the aggravated offence as the relevant statutory reference point and then applied Section 18 because the conduct proved amounted to an attempt.
It is important to distinguish the Court’s conclusion from a broader proposition that every instance of removing a child’s clothing automatically constitutes attempted sexual assault. The ruling was based on the particular finding that the undergarment was removed with sexual intent and that the accused had not proceeded further. The element of sexual intent was central to the Court’s reasoning. The legal classification of similar conduct in another case would depend on the evidence and circumstances established in that case.
Likewise, the judgment does not suggest that the absence of physical injury or medical corroboration necessarily defeats a prosecution under the POCSO Act. The Court considered the particular evidentiary record before it, including the inconsistencies and the medical evidence, while determining the precise act proved. The significance of any medical evidence must be assessed in the context of the allegations, the nature of the offence and the complete evidentiary record.
Ultimately, the Bombay High Court partly allowed the appeal filed by Ganesh Hotlappa alias Prabhakar Padampalle. It modified the conviction-related assessment of the proved conduct by treating it as an attempt to commit sexual assault and applied Section 18 of the POCSO Act to determine the appropriate punishment. The sentence of five years’ rigorous imprisonment was reduced to three-and-a-half years’ rigorous imprisonment.
The decision is significant for its treatment of the boundary between a completed sexual offence and an attempt under the POCSO Act. It confirms that the deliberate removal of a child’s undergarment with sexual intent may amount to an attempt even where the accused does not proceed to a further act. At the same time, it underscores that sentencing must follow the applicable statutory provision and reflect the precise offence established by the evidence.
By applying Section 18, the Court ensured that the punishment corresponded to the legal classification of the conduct as an attempt. The ruling therefore addresses two distinct aspects of criminal adjudication: the need to assess evidence carefully before determining the offence proved, and the obligation to calculate punishment in accordance with the statutory framework governing that offence. The appeal was accordingly allowed in part, and the sentence was reduced to three-and-a-half years’ rigorous imprisonment.