1. Appeal against conviction for sexual harassment under IPC and POCSO for molesting a minor under pretext of medical examination. (Para 2 , 3 , 4 , 5 )
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2026 Supreme(Gau) 1496
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH
PRANJAL DAS, J.
Shri Om Prakash Sah – Appellant
Versus
The State Of Nagaland And Anr Kohima Nagaland – Respondent
Crapl/1 Of 2023
Decided On : 20-07-2026
Important Points
A teacher using a medical pretext (stethoscope) to touch a minor with sexual intent constitutes sexual harassment under Section 11(ii) POCSO and Section 354A(1)(i) IPC, even if charged under different sections.
Subject
Criminal Law - Sexual Offences against Children
Act Referred
Code of Criminal Procedure, 1973: S.374, S.313, S.222, S.164
Indian Penal Code, 1860: S.354, S.354A(1)(i), S.376(b), S.307, S.326, S.306, S.302
The Protection of Children from Sexual Offences Act, 2012: S.6, S.7, S.8, S.11, S.12
Indian Penal Code, 1860: S.354, S.354A(1)(i), S.376(b), S.307, S.326, S.306, S.302
The Protection of Children from Sexual Offences Act, 2012: S.6, S.7, S.8, S.11, S.12
Headnote
(A) Indian Penal Code, 1860 - Sections 354, 354A(1)(i) - Protection of Children from Sexual Offences Act, 2012 - Sections 7, 8, 11, 12 - Code of Criminal Procedure, 1973 - Sections 313, 374 - Conviction under Section 354A(1)(i) IPC read with Section 12 POCSO for sexual harassment upheld despite charges under Sections 354 IPC and 8 POCSO - Acts of touching breast, abdomen and private parts with stethoscope as a pretext constitute sexual harassment under Section 11(ii) POCSO (making child exhibit body with sexual intent) and Section 354A(1)(i) IPC (physical contact and advances involving unwelcome explicit sexual overtures). (Paras 31-42)
(B) Evidence - Witness credibility - Testimony of child victim found clear and cogent and corroborated by mother and cousin brother - No injuries on victim compatible with nature of acts - False answers in Section 313 CrPC examination indicate guilty mind. (Paras 36-39)
(C) Criminal Procedure - Charge and conviction - Conviction for a minor offence not charged is permissible if ingredients of minor offence are made out - Section 222 CrPC - Alteration of conviction from sexual assault to sexual harassment valid. (Paras 41-42)
Facts of the case:
The appellant, a school teacher, called the minor victim and her cousin brother to his residence in the evening for school admission. Under the pretext of a medical check-up, he used a stethoscope but did not actually use it; instead he touched the victim's abdomen, breast and private parts and inserted his fingers into her vagina. The victim disclosed the incident to her mother after returning home. A complaint was lodged leading to registration of FIR under Sections 376(b)/354 IPC read with Section 6 POCSO. Charge-sheet was filed under Section 354 IPC read with Section 8 POCSO. Trial court convicted the appellant under Section 354A(1)(i) IPC read with Section 12 POCSO and sentenced him to 1 year, 1 month and 3 weeks imprisonment. The appellant had already undergone the sentence by the time of appeal.
Findings of Court:
The evidence of the victim (PW2) was clear and cogent, corroborated by the mother (PW1) and the cousin brother (PW3). The appellant was not medically qualified; the stethoscope was not in working condition and was used only as a pretext. The act of making the victim expose her abdomen and then touching her inappropriate parts with sexual intent fell within Section 11(ii) POCSO and Section 354A(1)(i) IPC. The conviction was sustainable even though the appellant was not charged under those specific sections. The sentence was on the lower side and no interference was warranted.
Issues: (i) Whether the evidence proved the offence of sexual harassment under POCSO and IPC? (ii) Whether conviction under a different set of provisions from those charged was valid? (iii) Whether the testimony of the victim was reliable?
Ratio Decidendi: The essential ingredients of sexual harassment under Section 11(ii) POCSO (making a child exhibit body with sexual intent) and Section 354A(1)(i) IPC (unwelcome physical contact and advances) were satisfied by the appellant's conduct of using a stethoscope as a pretext to make the child expose her body and then touching her inappropriately. The conviction for a minor offence under Section 222 CrPC is permissible. The false answers in Section 313 CrPC strengthened the prosecution case. Result : Criminal appeal dismissed; conviction and sentence upheld.
(B) Evidence - Witness credibility - Testimony of child victim found clear and cogent and corroborated by mother and cousin brother - No injuries on victim compatible with nature of acts - False answers in Section 313 CrPC examination indicate guilty mind. (Paras 36-39)
(C) Criminal Procedure - Charge and conviction - Conviction for a minor offence not charged is permissible if ingredients of minor offence are made out - Section 222 CrPC - Alteration of conviction from sexual assault to sexual harassment valid. (Paras 41-42)
Facts of the case:
The appellant, a school teacher, called the minor victim and her cousin brother to his residence in the evening for school admission. Under the pretext of a medical check-up, he used a stethoscope but did not actually use it; instead he touched the victim's abdomen, breast and private parts and inserted his fingers into her vagina. The victim disclosed the incident to her mother after returning home. A complaint was lodged leading to registration of FIR under Sections 376(b)/354 IPC read with Section 6 POCSO. Charge-sheet was filed under Section 354 IPC read with Section 8 POCSO. Trial court convicted the appellant under Section 354A(1)(i) IPC read with Section 12 POCSO and sentenced him to 1 year, 1 month and 3 weeks imprisonment. The appellant had already undergone the sentence by the time of appeal.
Findings of Court:
The evidence of the victim (PW2) was clear and cogent, corroborated by the mother (PW1) and the cousin brother (PW3). The appellant was not medically qualified; the stethoscope was not in working condition and was used only as a pretext. The act of making the victim expose her abdomen and then touching her inappropriate parts with sexual intent fell within Section 11(ii) POCSO and Section 354A(1)(i) IPC. The conviction was sustainable even though the appellant was not charged under those specific sections. The sentence was on the lower side and no interference was warranted.
Issues: (i) Whether the evidence proved the offence of sexual harassment under POCSO and IPC? (ii) Whether conviction under a different set of provisions from those charged was valid? (iii) Whether the testimony of the victim was reliable?
Ratio Decidendi: The essential ingredients of sexual harassment under Section 11(ii) POCSO (making a child exhibit body with sexual intent) and Section 354A(1)(i) IPC (unwelcome physical contact and advances) were satisfied by the appellant's conduct of using a stethoscope as a pretext to make the child expose her body and then touching her inappropriately. The conviction for a minor offence under Section 222 CrPC is permissible. The false answers in Section 313 CrPC strengthened the prosecution case. Result : Criminal appeal dismissed; conviction and sentence upheld.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates Appeared:
For The Appellant : Mr. M. Das Gupta & Mr. Medo Vero.
For The Respondent: Mr. V. Zhimomi, Public Prosecutor, Mr. Sentiyanger, Amicus Curiae.
For The Appellant : Mr. M. Das Gupta & Mr. Medo Vero.
For The Respondent: Mr. V. Zhimomi, Public Prosecutor, Mr. Sentiyanger, Amicus Curiae.
Table of Contents
2. Appellant contends no gesture or sexual intent; prosecution and informant submit testimony cogent and conviction proper. (Para 6 , 7 , 8 )
3. Appeal dismissed; conviction under Section 354A IPC and Section 12 POCSO upheld and confirmed. (Para 45 , 46 )
4. Can an accused be convicted under Section 354A(1)(i) IPC and Section 12 POCSO when charged under Section 354 IPC and Section 8 POCSO?
Yes, the court held that conviction for a lesser offence (sexual harassment) is sustainable when the ingredients are proved. (Para 30 , 41 , 42 , 43 )
5. What constitutes sexual harassment under Section 11(ii) POCSO?
Making a child exhibit her body or any part of it with sexual intent, so that it is seen by the person, constitutes sexual harassment. (Para 34 , 42 )
6. Is the uncorroborated testimony of a minor victim sufficient for conviction in sexual offence cases?
Yes, the testimony of the victim, if clear, cogent and unshaken, can be the sole basis for conviction, especially when corroborated by surrounding circumstances. (Para 35 , 36 , 40 )
7. Does the use of a medical pretext like a stethoscope negate sexual intent?
No, if the device is not used for its intended purpose and is a mere pretext to touch the child inappropriately, sexual intent is established. (Para 38 , 39 )
JUDGMENT :
Pranjal Das, J.
Heard Mr. Manas Das Gupta, learned counsel along with Mr. Medo Vero, learned counsel for the appellant. Also heard Mr. V. Zhimomi, learned Public Prosecutor for the State respondent No. Mr. Sentiyanger, learned Amicus Curiae for the respondent No.2/informant.
2. The instant criminal appeal has been filed under Section 374 Cr.P.C against the judgment and order dated 11-04-2023 passed by the learned Special Judge (POCSO), Mon, Nagaland in G.R. Case No. 12 of 2022, arising out of Mon Women P.S. Case No. 1 of 2022. By the said impugned judgment and order, the appellant was convicted under Section 354 (A)(1)(i) of IPC, read with Section 12 of the POCSO Act. For his such conviction, the appellant was sentenced to 1(one) year 1(one) month and three weeks imprisonment.
3. The prosecution case in brief is that on 20.02.2022, a Zero FIR was forwarded to Mon Women police station by the O/C of Aboi P.S. about a complaint lodged by the mother of the victim, stating that the present accused, serving as G.T.(science) at G.M.S., Chaoha Chingnyu had sexually exploited her minor daughter under the pretext of treating her using stethoscope and applying ointment with his bare hand over her body, pressing her breast, stomach and private parts and also inserting his fingers there.
4. On the basis of the FIR, Mon Women P.S. case No. 1 of 2022 was registered under section 376(b)/354 I.P.C. r/w section 6 of the POCSO Act and investigation was initiated. After completion of investigation, a charge-sheet was filed against the appellant under section 354 I.P.C. r/w section 8 of the POCSO Act.
5. Thereafter, the learned trial court framed charges against the accused under section 354 I.P.C. r/w section 8 of the POCSO Act and upon the charge being denied, the trial commenced. During the trial, the prosecution examined 13 witnesses, including the victim, M.O. and I/O. After completion of the prosecution evidence, the appellant was duly examined under section 313 Cr.P.C. The defence did not adduce any evidence. After completion of trial, the appellant was convicted and sentenced as mentioned above. Hence, the appeal.
6. The learned counsel for the convict appellant submits that the foundational facts were not proved and that there was no gesture on the part of the accused to attract the sections under which he has been convicted. It is submitted that the victim and her brother had come for admission, but the question is why they came in the evening. It is submitted that the ingredients of sexual harassment are not met and that there was no intention or premediation on the part of the accused. It is submitted that the use of stethoscope, even if it was there, was not illegal. It is submitted that the accused never misused the stethoscope. It is further submitted by the learned counsel for the appellant that the trial court erred in convicting the appellant for the sections for which he was not charged. The learned counsel reiterates his submission that use of stethoscope was not an illegal act. It is submitted that the appellant was convicted on presumptions.
In support of his contentions, the learned counsel for the appellant relies on the following decisions –
(i) Main Pal vs. State of Haryana , reported in Crl. Appl. No. 1696 of 2010.
(ii) Sujit Biswas vs. State of Assam , reported in Crl.Appl. No. 1323 of 2011.
(iii) Sangar Aboina Sreena vs. State of Andhra Pradesh , order dated 23.04.1997.
(iv) Shamnsaheb M. Multtani vs. State of Karnataka , Crl. Appeal No. 907 of 1998.
7. On the other hand, the learned public prosecutor submits that there is no illegality in the judgment and that the appellant not being a medical practitioner was not authorized to use a stethoscope. It is submitted by the prosecution that the testimony of the prosecution witnesses is cogent and that there is no contradiction between the testimony of the victim and the brother. The prosecution submits that the impugned judgment and order may be upheld and confirmed.
