Disrobing a Minor Is Aggravated Sexual Assault Even Without Penetration: Calcutta High Court Affirms Conviction Under Section 354B IPC and Section 10 POCSO

“Presumption of Guilt Under Section 29 POCSO Applies When Victim’s Statement Is Clear and Corroborated” —  In a compelling judgment delivered Calcutta High Court upheld the conviction of a man accused of disrobing and sexually assaulting a seven-year-old girl, ruling that even in the absence of evidence of penetration, the conduct qualified as “aggravated sexual assault” under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The Court also affirmed the concurrent conviction under Section 354B IPC for assault with intent to disrobe, noting that the victim’s testimony was corroborated by her neighbours and matched her earlier statements under Section 164 CrPC.

Justice Dr. Ajoy Kumar Mukherjee held: “Where a child victim’s account is consistent and corroborated by immediate outcry and neighbour testimony, and no rebuttal is offered, the presumption under Section 29 POCSO justifies conviction.”

The appellant, Babulal Sardar, was convicted by the Additional Sessions Judge, Alipore, and sentenced to four years’ rigorous imprisonment under Section 354B IPC and six years under Section 10 of the POCSO Act. The FIR, lodged on the same day of the incident—September 12, 2021—alleged that the accused had called the victim into his house, bolted the door, removed her clothes, and committed rape.

During the trial, the Court noted that while the victim had made mention of rape during her testimony, her earlier statement under Section 164 CrPC recorded four days after the incident described only disrobing and inappropriate touching. Medical evidence also did not show fresh injuries indicative of recent penetration, although the hymen was ruptured.

The trial court, acknowledging these inconsistencies, acquitted the accused of rape under Section 376AB IPC but convicted him for aggravated sexual assault and disrobing based on the consistent portions of the testimony and corroborative accounts from neighbours.
 

Disrobing and Sexual Intent

The High Court agreed with the trial court’s findings, observing: “The victim stated she was called by the appellant, the door was locked, and her clothes were removed. This is a clear act of sexual assault under Section 7 and aggravated under Section 9(m) of the POCSO Act due to her age.”

The Court found no contradiction between the FIR, the victim’s Section 164 statement, and the depositions of two neighbours—Jyotsna Halder and Srabanti Sardar—who confirmed that the victim immediately reported being disrobed inside the appellant’s house.
“The neighbours did not testify to rape but fully supported the allegation of disrobing. Their testimonies corroborated the victim’s own earlier account, fulfilling the test under Section 354B IPC and Section 10 POCSO.”

Presumption Under Section 29 POCSO and Failure to Rebut
A key feature of the judgment was the Court’s treatment of the presumption of guilt under Section 29 of the POCSO Act. The Court ruled that once the prosecution proves foundational facts—such as opportunity, proximity, and consistent victim narration—the burden shifts to the accused.
Justice Mukherjee noted: “The appellant made no effort to discharge the statutory burden under Section 29. Mere vague suggestions of property dispute do not suffice to rebut the legal presumption.”

The Court rejected the defence’s claim that the trial was vitiated by failure to examine the Magistrate who recorded the Section 164 statement, holding that such statements are admissible under Section 80 of the Evidence Act unless fabrication is pleaded and proved.
Age of the Victim and Procedural Objections
 

The Court dismissed the argument that the victim’s age was unverified, stating: “The birth certificate was marked as Exhibit 4. No contrary evidence was presented by the defence. The argument has no legal foundation.”
Similarly, the Court found no merit in the claim that the 313 CrPC examination failed to include all material evidence. Without proof of prejudice, the Court declined to interfere.

Dismissing the appeal, the High Court affirmed the sentence, reiterating: “Sexual assault upon a child need not amount to rape for it to attract serious penal consequences. Disrobing a seven-year-old in a locked room constitutes aggravated sexual assault.”

The judgment serves as a reaffirmation of the broad protection offered under the POCSO Act and reinforces the evidentiary value of consistent and contemporaneous victim testimony when supported by immediate witnesses.

Date of Decision: April 22, 2025