The Bombay High Court (Nagpur Bench) has upheld the conviction of an accused for sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, ruling that the act of catching hold of a minor’s hand accompanied by an offer of money for sexual favours demonstrates clear sexual intent.
Justice Nivedita P. Mehta dismissed the criminal appeal filed by Sheikh Rafique Sk. Gulab, affirming the judgment of the Additional Sessions Judge-2, Yavatmal. The High Court held that the appellant’s actions—specifically holding the hand of a 13-year-old girl and offering her money to “do the game” (engage in sexual activity)—squarely fell within the ambit of “sexual assault” under Section 7 of the POCSO Act, punishable under Section 8. The Court also upheld the conviction under Sections 354 (Assault or criminal force to woman with intent to outrage her modesty) and 354-A (Sexual harassment) of the Indian Penal Code (IPC).
Background of the Case
The prosecution’s case dates back to October 2015. On October 23, 2015, the appellant visited the victim’s house while her parents were at work, requested water, and offered her Rs. 50 if she allowed him to engage in sexual activity. The victim remained silent. The appellant repeated the act on October 24, 2015, at approximately 2:00-2:30 PM. On this occasion, he caught hold of the victim’s right hand and made the same proposition. The victim jerked her hand away and informed her maternal uncle, who subsequently lodged the First Information Report (FIR).
The Trial Court, invoking Section 42 of the POCSO Act, sentenced the appellant to rigorous imprisonment for three years and imposed a fine, noting that Section 8 of the POCSO Act prescribes a higher punishment than Section 354-A of the IPC.
Arguments Raised
The Appellant’s Defense Mr. Shyam R. Jaiswal, the appointed counsel for the appellant, argued that Section 8 of the POCSO Act was inapplicable as the prosecution failed to prove that the appellant caught hold of the victim with sexual intent. He contended that the incident allegedly occurred in a densely populated slum, making it improbable for such acts to go unnoticed. The defense highlighted discrepancies regarding the timing of the incidents and the delay in filing the FIR.
Reliance was placed on the decisions of the Bombay High Court in Manoj Suryakant Dalvi v. State of Maharashtra (2025 ALL MR (Cri.) 2258) and Santosh v. State of Maharashtra (Criminal Appeal No. 301/2022) to argue for acquittal.
The State’s Submission Representing the State, Additional Public Prosecutor Mr. Amit Chutke submitted that the evidence clearly established the appellant’s sexual intent. He argued that minor inconsistencies in the victim’s statement were trivial and did not affect the core prosecution case. The State maintained that the victim’s testimony was consistent and trustworthy.
Court’s Analysis and Observations
Credibility of the Minor Victim The High Court emphasized that in POCSO cases, the testimony of the child victim is of “paramount importance.” After evaluating the evidence, the Court found the victim’s account to be “clear, consistent and natural.” Justice Mehta observed:
“Her narration is spontaneous and free from embellishment… The core of her evidence remained unshaken in cross-examination.”
On Sexual Assault and Intent Addressing the appellant’s contention regarding the lack of sexual intent, the Court ruled that the physical act combined with the verbal offer constituted sexual assault. The judgment stated:
“The act of catching hold of the hand of a minor child, accompanied by an offer of money and an invitation to engage in sexual activity, unmistakably demonstrates sexual intent. The ingredients of Section 8 of the POCSO Act are fully satisfied.”
The Court rejected the argument that merely holding a hand without further physical assault does not constitute an offence, noting that the POCSO Act protects children from sexual assault in all forms, including attempted or inducement-based acts.
Legal Precedents The Court referred to the Supreme Court’s decision in Raju Pandurang Mahale v. State of Maharashtra [(2004) 4 SCC 371] to define the ingredients of outraging modesty, noting that the “culpable intention of the accused is the crux of the matter.”
Regarding the judgments cited by the appellant (Manoj Suryakant Dalvi and Santosh), the High Court distinguished them on facts, stating they involved “materially different evidence” and could not be applied to the present case where the victim’s testimony was credible.
Sentencing and Probation The Court also addressed the quantum of the sentence. Relying on the precedent in Shri Narshiv Usapkar v. The State of Goa [2012 ALL MR (Cri) 3891], Justice Mehta declined to extend the benefit of the Probation of Offenders Act, 1958. The Court observed:
“While the appellant may have no prior criminal antecedents, the seriousness of the offences, which involve sexual assault on a minor, requires that a balance be struck between the interests of the accused and those of society.”
The Decision
The High Court affirmed the conviction and the sentence of three years of rigorous imprisonment. The Court concluded that the sentence imposed was in consonance with the statutory minimum prescribed under Section 8 of the POCSO Act and warranted no interference.
The appeal was dismissed.
Case Title: Sheikh Rafique Sk. Gulab v. The State of Maharashtra
Case No.: Criminal Appeal No. 772 of 2019
Coram: Justice Nivedita P. Mehta
