Repeated Touching Of A Child's Breasts Amounts To "Aggravated Sexual Assault" Under POCSO Act: Sikkim High Court
The Court observed that "some male gaze still suffers from mental aberrations", and held that the sentence of five years' rigorous imprisonment cannot be reduced below statutory minimum.
The Sikkim High Court has held that touching a child's breasts twice during the same incident constitutes "aggravated sexual assault" under Section 9(l) of the POCSO Act, 2012. The Court found that repeating the act after the survivor expressed displeasure demonstrated the necessary repetition to elevate the offense from simple "sexual assault" under Section 7 to its aggravated form.
Addressing the predatory nature of the crime, the Court remarked that "some male gaze still suffers from mental aberrations and fantasizes a girl's breasts as a sexual object." Affirming the conviction, the Court refused to reduce the sentence, clarifying that Section 10 of the Act mandates a minimum punishment of five years' rigorous imprisonment, which cannot be lowered on grounds of personal hardship.
A Single Bench of Justice Bhaskar Raj Pradhan observed, “When a person commits ‘sexual assault’ on a child more than once or repeatedly it amounts to ‘aggravated sexual assault’. The two separate acts of touching the survivor’s breasts by the appellant during the same occurrence establish the ingredients of section 9(l) of the POCSO Act which the prosecution has been able to prove by the evidence of the survivor herself. The testimony of the survivor of repeated sexual assault by the appellant on her establishes the commission of ‘aggravated sexual assault’”.
On sexual intent, the Court specifically observed, “The repeated act of the appellant of touching the survivor’s breasts after a gap between the first incident and the second reflects his ‘sexual intent’. ‘Sexual intent’ may be gathered from the actions of the accused during the time of the incident. The repeated act of the appellant of touching the survivor’s breasts when on the first occasion she had expressed her displeasure to him clearly establishes that it was done ‘intentionally’. Unfortunately, some male gaze still suffers from mental aberrations and fantasizes a girl’s breasts as a sexual object. Therefore, the POCSO Act makes the “touch” of a child’s breasts with “sexual intent”, an offence. The appellant clearly suffered from it as well. According to the survivor the appellant thereafter offered the survivor Rs.100/-. This also reflects his intent”.
D.K. Siwakoti, Legal Aid Counsel appeared for the appellant and Yadev Sharma, Additional Public Prosecutor appeared for the respondent.
The prosecution's case was that on December 14, 2023, the appellant, a co-villager known to the survivor and her family, entered the survivor's house while her parents were away. As the survivor was eating, the appellant approached her from behind, touched and pressed her breasts; when she reacted by speaking loudly, he briefly withdrew, but returned and repeated the act when she resumed eating. He is alleged to have thereafter offered her Rs. 100.
The survivor disclosed the incident to her mother upon the latter's return home, who in turn informed the survivor's father; an FIR was lodged the following day. The survivor was subsequently examined under Section 164 of the Code of Criminal Procedure, 1973, and later deposed before the Special Judge, POCSO, in terms consistent with her earlier statement.
By a judgment dated June 10, 2025, and an order on sentence dated June 16, 2025, the Special Judge (POCSO), Pakyong, convicted the appellant under Sections 9(l) and 10 of the POCSO Act for aggravated sexual assault, sentencing him to five years’ rigorous imprisonment and recommending ₹15,000 victim compensation.
The appellant challenged the conviction before the High Court on four main grounds: discrepancies between the mother's description of the incident and the survivor's own account, the absence of any mention of repetition in the FIR, inconsistencies regarding the exact time of the incident, and alleged infirmities in proving the survivor's birth certificate to establish her minority.
Dismissing the appeal, the High Court held that repeatedly touching the survivor after she expressed displeasure, combined with offering her money afterward, clearly established "sexual intent" and met the threshold for "aggravated sexual assault" under Section 9(l), triggering an unrebutted presumption of a culpable mental state under Section 30. The Court found the survivor to be a "sterling witness" whose consistent testimony across her Section 164 statement and final deposition could sustain a conviction without medical corroboration.
It further held that minor variations in secondhand accounts did not destroy the core prosecution case, and the survivor's age was duly proved via public birth, school, and municipal records. Consequently, the High Court upheld the conviction, sentence, and compensation in full, directing the trial court records to be remitted to the Special Judge, Pakyong.
Cause Title: Limbu Manger @ Raju Thapa v. State of Sikkim, Criminal Appeal No. 24 of 2025
Appearances:
Appellant: D.K. Siwakoti, Legal Aid Counsel.
Respondent: Yadev Sharma, Additional Public Prosecutor.