1. Appeal against conviction for attempt to commit aggravated sexual assault under POCSO Act on a minor girl. (Para 1 , 2 , 3 , 4 , 8 )
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2026 Supreme(Online)(Del) 5866
Chandrasekharan Sudha, J
Sudarshan – Appellant
Versus
State – Respondent
CRL.A. 1144/2016
Advocates:
For the Appellants/Petitioners: Manika Tripathy, Aakash M., Raman Khan, Nandini Goel, Saksham Singh
For the Respondents: Utkarsh, Raghavendra Mohan Bajaj, Shagun Agarwal, Pritesh Raj
For the Appellants/Petitioners: Manika Tripathy, Aakash M., Raman Khan, Nandini Goel, Saksham Singh
For the Respondents: Utkarsh, Raghavendra Mohan Bajaj, Shagun Agarwal, Pritesh Raj
An accused cannot be convicted for a completed offence if charged only with an attempt, and the sentence for such an attempt under Section 18 of the POCSO Act is capped at half the maximum term of the substantive offence.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 7, 9(m), 10 and 18 - Attempt to commit aggravated sexual assault - Accused convicted by trial court for commission of the offence of aggravated sexual assault despite being charged only for the attempt to commit the same - It was held that the trial court erred in convicting the accused for the completed offence when the charge had not been amended from "attempt" to "commission". While the materials on record supported a finding of aggravated sexual assault, the accused cannot be convicted for an offence for which he was not charged. (Paras 19, 20)
(B) Protection of Children from Sexual Offences Act, 2012 - Section 18 - Sentencing for attempt - According to Section 18, an attempt to commit an offence punishable under the Act is liable to be punished with one-half of the longest term of imprisonment provided for that offence. Since the maximum imprisonment for the offence under Section 10 is seven years, the maximum sentence for an attempt is three and a half years. The trial court's sentence of five years was therefore modified. (Para 21)
Facts of the case:
The appellant was accused of attempting to commit aggravated sexual assault on a minor girl aged 4½ years by removing her underwear and climbing over her back. The victim's testimony, corroborated by her parents, stated the accused took her into his shop, undressed her, and poured a liquid on her. The trial court convicted him under Section 9(m) punishable under Section 10 of the POCSO Act and sentenced him to five years rigorous imprisonment. The appellant challenged the conviction on grounds of lack of evidence, tutoring of the child witness, and a purported monetary dispute with the family.
Findings of Court:
The court found the testimony of the victim to be credible and reliable, noting that the sole testimony of a victim of sexual assault, if credible, requires no corroboration. However, the court observed that the accused was charged only with the attempt to commit the offence and not the commission of it. Consequently, the conviction must be based on the attempt.
Issues: Whether the accused could be convicted for the commission of aggravated sexual assault when charged only for an attempt, and whether the sentence imposed by the trial court was legally permissible under Section 18 of the POCSO Act.
Ratio Decidendi: An accused cannot be convicted for a completed offence if they were charged only with an attempt, regardless of whether the evidence supports the commission of the offence. Furthermore, the sentence for an attempt under Section 18 POCSO Act must not exceed half of the maximum term provided for the substantive offence.
Result: Appeal partly allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Appellant argued no injuries, victim tutored, false implication; prosecution argued testimony credible. (Para 9 , 10 , 11 )
3. Victim's testimony found credible; act constitutes aggravated sexual assault but accused charged only for attempt. (Para 15 , 18 , 20 , 21 )
4. An accused cannot be convicted for an offence not charged; attempt punishment is half maximum imprisonment for completed offence. (Para 20 , 21 , 22 )
5. Appeal partly allowed; conviction modified to attempt; sentence reduced to rigorous imprisonment for three and a half years. (Para 22 , 23 )
6. Can an accused be convicted for an offence not charged?
No, conviction for an offence not charged is invalid as it violates the right to a fair trial. (Para 20 )
7. What is the punishment for attempt under the POCSO Act?
Punishment for attempt is half of the maximum imprisonment provided for the completed offence under Section 18. (Para 21 )
8. Is the sole testimony of a child victim sufficient for conviction under the POCSO Act?
Yes, if found credible and reliable, sole testimony of the victim requires no corroboration. (Para 15 , 18 )
9. Does non-compliance of Section 232 CrPC vitiate proceedings?
No, non-compliance does not ipso facto vitiate proceedings unless prejudice to the accused is shown. (Para 7 )
10. Does removing underwear and climbing on a child's back constitute aggravated sexual assault?
Yes, if done with sexual intent and child is below twelve years, it falls under Section 9(m) of the POCSO Act. (Para 20 )
1. In this appeal filed under Section 374(2) of Code of Criminal Procedure (the Cr.P.C.), the sole accused in SC No. 182 of 2014 on the file of the Additional Sessions Court, Rohini District Courts, New Delhi, assails the judgment dated 08.12.2015 as per which he has been convicted and sentenced for the offences
punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
2. The prosecution case, is that on 10.07.2014 at about 02:30 PM, at House No. B-337, Gali No. 2, Prem Nagar-III, Gauri Shankar Enclave, Delhi, the accused attempted to commit aggravated sexual assault on PW12, a minor girl aged approximately 4½ years, by removing her underwear and climbing over her back with the intent to commit a wrongful act on her.
3. Based on Ext. PW11/A FIS/FIR of PW11, the mother of PW12, given on 10.07.2014, crime no. 730/2014, Aman Vihar Police Station, that is, Ext. PW1/A FIR was registered by PW1 Head Constable (HC) alleging commission of the offence punishable under Section 354 IPC. PW14 conducted investigation into the crime and on completion of the same filed the charge-sheet/final report alleging commission of offences
punishable under Sections 511, 354 and 376 IPC and Section 10 of the PoCSO Act.
4. When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court as per order dated 29.01.2015 framed a charge under Section 9(m) read with Sections 10 and 18 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 14 were examined and Exts. PW1/A-B, PW2/A-F, PW3/A-D, PW4/A, PW5/A, PW7/A-B, PW8/A, PW11/A-C, PW13/A-C, PW14/A were marked in support of the case.
6. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. He submitted that he has been falsely implicated in this case.
7. After questioning the accused under Section 313(1)(b) CrPC, compliance of Section 232 CrPC was mandatory. In the case on hand, no hearing as contemplated under Section 232 CrPC is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply the same is shown to have resulted in serious and substantial prejudice to the accused (See Moidu K. vs. State of Kerala , 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Section 232 Cr.P.C has caused any prejudice to him. No oral or documentary evidence was adduced by the accused.
8. Upon consideration of the oral and documentary evidence on record and after hearing both sides, the trial court, vide the impugned judgment dated 08.12.2015 held the accused guilty of the offence contemplated under Section 9(m)
punishable under Section 10 of the PoCSO Act and hence sentenced him to undergo rigorous imprisonment for a period of 5 years and to a fine of ₹5,000/-, and in default of payment of fine, to undergo simple imprisonment for six months. The sentences have been directed to run concurrently. Aggrieved, the accused has preferred the present appeal.
9. It was submitted by the learned counsel for the appellant/ accused that the prosecution case suffers from serious infirmities as there were no injuries, bruises or abrasions found on PW11, which would ordinarily be expected if she had been forcibly pushed to the ground, as alleged. It was further submitted that there was no evidence of any attempt at penetration or ejaculation as the clothes worn by PW12 was not recovered by the police. The learned counsel also submitted that PW12, being only four and a half years old, was too young to accurately comprehen
