Madras HC Suspends POCSO Conviction, Finds Hand-Pulling Alone Does Not Establish Sexual Intent

Justice M. Nirmal Kumar held that pulling a minor's hand after whistling at her amounts, at most, to harassment under Section 11 of the POCSO Act and not sexual assault under Section 8, warranting suspension of the three-year sentence pending appeal.

The Madras High Court on 10 July 2026 suspended the sentence of a man convicted under Section 8 of the Protection of Children from Sexual Offences Act and ordered his release on bail pending the hearing of his criminal appeal. Justice M. Nirmal Kumar, sitting singly, found that the overt act on record — whistling at a minor and then pulling her hand when she did not respond — cannot straightaway be characterised as an act done with sexual intent. The court held there are arguable points in the appeal that merit full consideration, and that the matter could be brought under Section 11 of the POCSO Act at most, not Section 8. The petitioner had remained in custody for over 30 days after conviction, partly because his trial-court counsel failed to file a suspension-of-sentence petition at the time of judgment.

The Incident and Trial Court Conviction

The case traces to the evening of 1 March 2020. The complainant — mother of the minor victim — lodged a complaint on 2 March 2020 at the W-12 All Women Police Station, Harbour Range, Chennai, registered as Crime No. 03 of 2020. According to the complaint, her daughter was passing through a gate on her way to collect food from a relative's house when the petitioner, standing in a balcony, whistled and called out to her. When the child did not respond, the petitioner came downstairs, pulled her hand, and smiled at her with what the prosecution described as sexual intent.

The petitioner and the victim's family resided in the same compound. According to the defence, there had been a prior altercation between the petitioner and the victim's father involving an exchange of blows, and the complaint was projected to take advantage of the child's minority.

The Special Court for the Exclusive Trial of Cases under the POCSO Act, Chennai, tried the matter as Spl.S.C. No. 115 of 2021. Four witnesses were examined: PW1, the mother; PW2, the victim herself; PW3, a witness to the observation mahazar who did not support the prosecution's case; and PW5, the investigating officer. Exhibits P1 to P9 were marked. The trial court convicted the petitioner under Section 8 of the POCSO Act by its judgment dated 6 June 2026, sentencing him to three years of rigorous imprisonment and a fine of Rs. 1,000, with three months' simple imprisonment in default.

The Legal Question: Section 8 or Section 11 of the POCSO Act?

Section 8 of the POCSO Act prescribes punishment for sexual assault as defined under Section 7, which requires a physical act committed with sexual intent. Section 11 covers sexual harassment of a child and captures a broader range of conduct including gestures, words, and acts intended to cause distress without necessarily involving the specific physical contact that Section 7 addresses. The distinction matters because it also determines whether the presumptive clauses under Sections 29 and 30 of the POCSO Act — which presume culpable mental state and sexual intent once certain facts are established — are triggered at all.

Counsel for the petitioner, Mr. K. Sudhakar, argued that on the admitted facts, the act of pulling the victim's hand after she failed to respond to a whistle does not satisfy the ingredients of sexual assault under Section 7 read with Section 8. He submitted that the act, at most, constitutes harassment under Section 11, and that consequently the presumptions under Sections 29 and 30 would not apply. The State, represented by Mrs. Sharada Vivek, countered that the victim in her police statement, her Section 164 statement before a magistrate, and her court testimony all consistently confirmed the petitioner's act, and that the trial court rightly convicted him on that basis.

How the Court Reasoned

Justice Nirmal Kumar examined the materials on record and identified the sole witness to the occurrence as PW2, the victim. Her evidence established that the petitioner pulled her hand by force and nothing else. After she freed herself, she informed her mother PW1.

The court observed that the overt act — whistling, calling out, and then pulling the hand when ignored — cannot be straightaway termed as sexual intent and that, at most, it can be characterised as harassment. On that basis, the court held that the conviction under Section 8 of the POCSO Act needs to be re-examined and that arguable points exist in the appeal.

The court did not decide the appeal on merits at this stage. The suspension petition was filed under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which governs suspension of sentence and bail pending appeal. The court's finding that the act amounts at most to harassment was offered as the basis for concluding that the appeal raises arguable questions, not as a final determination of guilt or innocence.

The court also took note of the procedural circumstances. The petitioner had been in custody as an undertrial for 65 days before conviction. After the trial court delivered its judgment on 6 June 2026, his counsel failed to file a suspension-of-sentence petition before the trial court, which would ordinarily have secured his release given that the conviction was for three years or less. As a result, the petitioner remained in prison for more than 30 days post-conviction without any application being moved. Both sides acknowledged that a three-year sentence would normally be suspended by the trial court itself as a matter of course.

Outcome

Justice Nirmal Kumar ordered the suspension of the substantive sentence of imprisonment until the disposal of Criminal Appeal No. 830 of 2026. The petitioner was directed to be enlarged on bail on the following conditions:

• Execution of a personal bond for Rs. 5,000 with two sureties, each for a like sum, to the satisfaction of the trial court.
• Appearance before the trial court once every three months on the first working day at 10.30 a.m. until the criminal appeal is disposed of.

The order was addressed to the Learned Sessions Judge, Special Court for the Exclusive Trial of Cases under the POCSO Act, Chennai; the Superintendent, Central Prison, Puzhal, Chennai; the Inspector of Police, W-12 All Women Police Station, Harbour Range, Chennai; and the Public Prosecutor, High Court, Madras. The criminal miscellaneous petition was accordingly ordered on 10 July 2026.