Special Court for Protection of Children from Sexual Offences Act, 2012, Fort, Greater Bombay: Expressing that, the sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from attending circumstances of the case, M.A. Baraliya, Designated Judge under POCSO Act, 2012, held that touching bum of a girl cannot be said to be without sexual intention.

Accused was facing trial for committing offences punishable under Sections 354 and 354-A of the Penal Code, 1860 and under Section 10 of the Protection of Children from Sexual Offences Act, 2012.

The prosecution case was that the minor girl was aged 10 years old and had gone to buy the bread to a nearby shop. While returning, she noticed that 4 boys were laughing at her, later when she was going towards the Jain Temple with her friend, the boys were still there and one of them came near her and touched her private part and all of the boys started laughing at her.

All of the above was explained by the minor to her father and mother, after which a crime was registered. Hence the accused was arrested.

Charges were farmed for the offences punishable under Sections 354 and 354-A of IPC and under Section 10 of POCSO Act, 2012.

Analysis and Decision

Court noted that the victim (PW-3) and her father consistently deposed that the accused touched her private part.

Further, the victim in her statement before the police had not stated that the accused touched her private part means touched her bums. Though before the Court she deposed that the accused had touched her bums.

Bench expressed that the “term private part is to be interpreted into the context what is meant by it in our society. Google might not be interpreting bums as private part as submitted by the Advocate for the accused, but it is not acceptable interpretation as far as we Indians are concerned.”

Sexual Assault under Section 7 of the POCSO Act says that:

“Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

In the present matter, the accused had not touched either vagina, breast or anus of the girl, but touched her bums. The touching, as stated under the above-said Section, if is to the other organs, those categorised, then it must be with sexual intention.

Hence, touching the bum of the girl cannot be said to be without sexual intention.

The Court found that the past conduct of the accused of laughing at her and then touching her manifests that it was all with sexual intention, to grab the chance.

It was added that merely for the reason that there were no eyewitnesses to the incident and that the friend who was with the prosecutrix had not been examined, cannot be the reason to discard and disregard the testimony of the victim girl.

Accused by touching or patting on her, bums, has committed the act with full knowledge and intention to outrage her modesty and to assault her sexually.

Long back in the case famously known as butt slapping case, the accused Kanwarpal Singh Gill the then Director General of Police was convicted, for slapping on the posterior of the prosecutrix an I.A.S. Officer, by the trial court, to have committed the offence of outraging modesty under section 354 and 509 IPC and was also sentenced, for imprisonment and fine. 

In the present matter also, the victim was aged 10 years old on the date of the incident, provision of POCSO Act attracts for similar kind of this act touching the posterior of the victim. Hence, the prosecution succeeded in proving that the accused had committed the said act with sexual intention and outraged her modesty.

Sentence and Punishment

In view of the provision of Section 10, it is required to sentence the accused, having the provision of punishment greater in degree. So, the accused is to be punished and sentenced under Section 10 of the POCSO Act, 2012 only. He is not required to sentence under Sections 354 and 354-A of the IPC.

SPP submitted that such instances of inappropriately touching the girls on a road are on high. Hence imposing the maximum sentence, will give a message to society.

Considering the age factor of the accused along with the nature of the crime, gravity of offence and that he comes from a poor family a minimum sentence of 5 years with fine as provided under Section 10 POCSO Act was ordered. [State of Maharashtra v. Sahar Ali Shaikh, POCSO Special Case No. 519 of 2017, decided on 12-2-2021]

Advocates before the Court:

Mrs. Sulbha Joshi, Spl. P.P. for the Prosecution/State.

Ms. Nargis Khan, Advocate for Accused.

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