Court of Special Judge under the Protection of Children from Sexual Offences Act, 2012, Fort Greater Mumbai: Expressing that essence of a woman’s modesty is her womanhood, H.H. The Special Judge A.D.DEO, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.
Accused was prosecuted for the offence punishable under Section 354-A of the Penal Code, 1860 and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and under Section 91 of the Rights of Person with Disability Act, 2016 for making unwelcome and explicit touch to two female co-passengers while travelling in handicap compartment of local train thereby committing sexual assault upon them.
Details of incident
Informant was a minor victim 1 who was travelling as escort to her blind aunt i.e., victim 2 in handicap compartment of local train and they were going to attend a programme arranged by National Association for Blind.
Victim was the escort of PW-2, and they were travelling by local train from Badlapur to CSTM. As they wanted to go to Reay Road, they intended to change train at Kurla. When the Ghatkopar Station passed the informant, and her aunty went towards the right-side door.
It was stated that the informant was standing near the door, at that time she heard the voice of her aunt and saw that she was slapping a person. On asking what happened, her aunt said that the person had made inappropriate touch to her breast.
Upon that the informant said that the assailant of her aunt, while passing beside her (i.e. informant), had touched her breast and pressed it.
In view of the above, FIR was filed.
Analysis and Discussion
The Court noted that both PW-1 and PW-2 gave vivid details about the incident.
The Bench found the testimony of PW-1 and PW-2 to be creditworthy, cogent, consistent and reliable.
Further, it was stated that the innocence of PW-1 was reflected from her version that when the accused made unwelcome explicit touch to her breast, she ignored it, thinking that there was rush.
Court expressed that,
“What constitutes, an outrage to female modesty, is nowhere denied. The essence of woman’s modesty is her sex. It is the virtue, which is attached to a female, owning to her, sex.”
In the present matter, the culpable intention of the accused was the crux of the matter and the reaction of the woman was very relevant.
Additionally, the Court said that with regard to the nature of the allegation and the manner in which sexual offences are committed i.e. those are mostly committed secretly, it is also required to be pondered whether sole testimony of victim in such, nature of the allegation,
Upon evaluating and appraising the testimony of the prime witnesses PW1 and PW2 and the attendant factors and circumstances of the case, clinchingly, unequivocally it is elicited that the prosecution had been able to prove its case beyond reasonable doubt that the accused with sexual intent, made unwelcome touch to the victim girl aged 17 years, which was explicit sexual overtures.
“…incident as deposed by the two female victim PW1 and PW2 i.e. of unwelcome, inappropriate touch by the male accused, in journey, is a very common sexual assault experienced by every common woman traveling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey. Hence, almost all such assaults go unreported.”
As per Section 7 of the POCSO Act, whoever with sexual intent inter alia does any other act, which involves physical contact without penetration, is said to commit sexual assault.
Hence, the accused was guilty of committing an offence under Section 7 POCSO Act punishable under Section 8 of POCSO Act, Section 354 IPC and Section 91 of the Rights of Persons with Disability Act, 2016.
In view of the impact of child sexual abuse and on balancing the mitigating and aggravating circumstances, Court passed the following order:
- Accused stands convicted as per Section 235(2) of CrPC for the offence under Section 7 punishable under Section 8 of the POCSO Act to undergo rigorous imprisonment for a term of 3 years and a fine of Rs 25,000 and in default to undergo a term of 6 months.
- Accused stands convicted for offence under Section 354 and imprisonment for 3 years and fine of Rs 5,000.
- Accused stands convicted for the offence under Section 91 of the Rights of Persons with Disability Act and to undergo imprisonment for a term of 1 year and fine of Rs 5,000 and in default to undergo a term of 15 days.
- Accused to surrender his bail bonds and to be taken into custody.
[State of Maharashtra v. Mohsin Allauddin Chougule, Special Case No. 468 of 2017, decided on 22-2-2022]
Advocates before the Court
Ms. Jyoti Sawant, Spl PP for the State.
Mr. Pujari, Advocate for the Accused.