Case BriefsDistrict Court

Court of Fast Track Special Judge (POCSO), Thiruvanathapuram: R. Jayakrishnan, Special Judge addressed a case wherein a minor boy aged 9 years old was subjected cruelly by a 53-year-old man who squeezed the boy’s private part causing him pain.

In the present case, a minor boy was sexually assaulted and attempted to commit carnal intercourse against nature by the accused.

Prosecutions’ Story

PW1 was the victim boy having aged 9 years and he was residing along with his family. The accused person was a servant of the owner of the house where PW1 and his family resided on rent.

While PW1 was in the veranda of the house the accused came and squeezed the penis of PW1. At that time the house owner came, and the accused released him. Immediately PW1 told the incident to his mother, but she did not take it as seriously, but she saw that the accused called PW1 to the backside of the kitchen, later P1 told his mother that the accused assaulted him and he showed her how the accused squeezed his penis.

The mother of PW1 asked him to tell the above-stated incident to his father, after which they went to the police station and registered a case.

Investigation

Investigation revealed that the accused with his sexual intent squeezed the penis of PW1 and caused pain to him and also called PW1 to the backside of the residence and thus committed the aforesaid offences.

After the investigation, chargesheet was filed against the accused before the Additional Sessions Court (POCSO). Therefore, the accused was in custody. Further, as per the order of the Sessions Judge, the case was transferred to this Court for trial and disposal.

Charge under Sections 511 and 377 of Penal Code, 1860 and Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act was framed against the accused.

Points for determination:

  1. Whether the victim, in this case, was a minor?
  2. Whether the accused committed aggravated sexual assault on PW1?
  3. Whether the accused attempted to commit carnal intercourse against the nature of the order on PW1?
  4. What are the offence, if any, committed by the accused? 5. What is the sentence to be imposed?

Point 1: The mother of PW1 testified that the victim, PW1 is her son, and his date of birth is 07/12/2011. No serious dispute about the age of the victim was raised and it was found that at the time of the incident of the victim, PW1 was in this case a minor.

Points 2 and 3: In the present case, accused raised a number of suggestions at the time of examination of the witnesses, but no evidence was adduced to show that he had not committed any offence. As per the evidence it could be seen that the presence of the accused at the place of occurrence was proved. The only irresistible conclusion that the Court reaches at is that the accused was the perpetrator of the crime.

Bench found that there was no evidence to show that the accused had committed any attempt for carnal intercourse against the nature of the order on PW1 and considering the totality of the evidence and the circumstances, Court held that the accused committed aggravated sexual assault on PW1. Adding to this, the accused did not commit any offence of attempting to commit an unnatural offence of carnal intercourse against the victim.

Point 4: The accused was found not guilty of the offence under Sections 511 read with 377 of the Penal Code, 1860 and found guilty under Section 9(m) read with 10 of the POCSO Act.

Point 5: Bench expressed that,

The accused is a prudent man, well acquainted with the prose and cons of his misdeeds. His attitude shows his scant respect and honour for the legal system and morality. So he is not entitled to get the benevolent provisions of the Probation of Offenders Act, 1958.

Supreme Court’s decision in State of Punjab v. Bawa Singh, 2015 KHC 4036, it was held that,

“This Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be lenient that it shocks the conscience of the society. It is, therefore solemn duty of the Court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.”

Bench opined that the, accused who was aged 53 years subjected a 9-year-old boy to atrocities, hence he does not deserve any leniency for the sentence.

Therefore, the accused was sentenced to a rigorous imprisonment for 5 years and to a fine of Rs 25,000 with a default sentence for 6 months, RI under Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act, 2012.

Lastly, the accused was not found guilty under Sections 511 read with 377 IPC.[Vijaykumar, In Re., Sessions Case No. 869 of 2021, decided on 17-1-2022]


Advocates before the Court:

Prosecution Conducted by: Special Public Prosecutor, Sri Vijay Mohan R.S.

Accused defended by: Shahul Hameed

Case BriefsHigh Courts

Bombay High Court: While addressing a matter with regard to “outraging modesty of a woman”, M.G. Sewlikar, J., expressed that,

“…touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to a violation of modesty of a woman.”

On being aggrieved by the decision of Additional Sessions Judge present matter reached this Court.

Factual Matrix

The victim alleged that she and her grandmother in law were the only persons in their house as her husband had gone to the village. Applicant/accused lived in the house adjacent to the house of the victim. Later, the applicant had enquired with the victim when her husband would be returning.

At night around 11 p.m., the victim felt that someone was touching her feet and on waking up she found the accused/applicant sitting near her feet on her bed. Hence the victim shouted because of which her grandmother in law woke up and she raised shouts.

Therefore, the applicant ran away, and neighbours gather.

Next day morning victim’s husband returned and then she lodged a police report against the accused.

Analysis, Law and Decision

High Court cited the decision of Supreme Court in Rupan Deol Bajaj v. K.P.S Gill, (1995) 6 SCC 194, wherein the word ‘modesty’ was defined.

In Court’s opinion, the act of the applicant was capable of shocking the sense decency of any woman.

In the present matter, the applicant was sitting at the feet of the victim and had touched her feet, the said behaviour smacked of sexual intent, otherwise, there was no reason for the applicant to be in the house of the victim at such an odd hour of the night.

The Bench stated that the applicant did not enter the house of the victim with any sublime motive, he had ensured from the victim that her husband would not be present in the house that night.

The above-said incident clearly indicated that the applicant had gone there with sexual intent and violated the modesty of the informant.

Hence, the trial court did not commit any error in holding that the appellant molested the victim.

Therefore, the criminal application was dismissed. [Parmeshwar v. State of Maharashtra, 2021 SCC OnLine Bom 6144, decided on 21-12-2021]


Advocates before the Court:

Advocate for Applicant : Mr. Pratik Bhosle

Advocate/APP for Respondent-State: Mr. S.W. Munde

Advocate for R/2: Vishal A. Bagal

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., while addressing a matter wherein a child aged 9 years old was sexually assaulted, held that,

Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault.

Appellant impugns Judgment on conviction and order on sentence whereby appellant had been convicted of an offence under Section 10 of the POCSO Act, 2012.

Case of the prosecution

Victim girl who was 9 years old at the time of incident informed that the when the mother was away to her job, appellant came inside the house and removed her leggings and stated feeling/rubbing his hand on her thighs. The victim became frightened, tried to run out of the house but the appellant pulled her inside the house.

Somehow, the victim managed to free herself and went to the house of one Auntie in the neighbourhood.

Later, she informed her mother and thereafter the police was called.

Further, FIR was registered based on the above complaint.

As per the prosecution, the child victim, her brother and mother of the victim remained consistent in their respective statements given to the police as also in their testimonies before the trial court.

Section 29 of POCSO Act raises a statutory presumption against the accused.

Accused has not been able to dispel the presumption or discharge the onus. It is established from the testimony of the child victim and her brother that the appellant/accused had pulled down the leggings of the child and touched her thighs. Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of POCSO Act.

In terms of Section 9 (m) of POCSO Act since sexual assault was committed on a child below the age of 12, it would amount to aggravated sexual assault punishable under Section 10 of POCSO Act.

Bench stated that trial court passed a well reasoned order. No infirmity was found in the trail court’s order.

Thus, the appeal was dismissed. [Rajendra v. State, 2020 SCC OnLine Del 724 , decided on 03-07-2020]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dismissed a criminal revision petition filed by the State against the order of the trial court whereby the accused-respondent discharged from the offence punishable under Section 12 (prevention from sexual harassment) of the Prevention of Children from Sexual Offences Act, 2012.

An FIR was registered against the accused on the complaint of the mother of the minor victim. It was alleged that while the victim was playing with her friends, the accused came to them and said: “do rupees doonga, mere ghar chal, panch minute ki baat hai”. However, none of the girls went with him. The accused was tried and discharged as aforesaid. Aggrieved thereby, the State (represented by Hirein Sharma, APP) preferred the instant revision petition.

The High Court noted that the observations of the trial court that statement of the victim and the complainant, recorded under Section 164 CrPC did not reflect that the accused committed any offensive act upon the victim or he had any sexual intent. It was further observed that the main ingredient of Section 12 of the POCSO Act, i.e., sexual intent, was missing in the entire act of the accused and, therefore, the prima facie offence of sexual harassment was not made out against him and he was accordingly discharged.

The High Court noted that the victim, in her statement, had not stated anything regarding any sexual intent or sexual assault; the FIR was registered on the statement made by her mother, wherein she had made some allegations against the accused.

The High Court was of the opinion that the fact remains that the victim did not mention any act of sexual assault or sexual intent, therefore, there was no illegality or perversity in the order passed by the trial court thereby discharging the accused. Finding no merits in the instant petition, the Court dismissed the same. [State v. Anil, 2019 SCC OnLine Del 10995, decided on 06-11-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed by the State against the order of the trial court whereby the accused was discharged of the offence punishable under Section 12 (punishable for sexual harassment) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The subject FIR was registered on the complaint of the prosecutrix alleging that the accused was her first cousin and they were also friends. It was alleged that they used to talk over the phone and accused recorded some conversation with her, because of which she stopped to him. Further, that on the date of the incident, when the prosecutrix was coming back from school he stopped her mid-way and held her hand and misbehaved with her and asked her as to why she was not talking to him and threatened her and made her sit on his scooty and took her to Rakabganj Gurudwara. Pursuant to this incident, FIR was registered.

The trial court, in the impugned order, while framing charge against the accused under various sections of the Penal Code, discharged him of the offence under Section 12 of the POCSO Act. Trial Court was of the view that the only allegation against the accused was that he had caught hold of the hand of the victim and forcibly took her to Gurudwara on his scooty.

Meenakshi Dahiya, APP for the State, challenged the order of discharge. Per contra, Rakesh Pal Singh, Advocate for the accused, opposed the petition.

The High Court noted that perusal of the record as also the statement was given by the prosecutrix does not prima facie show that any act was done by the accused with any sexual intent. The allegations against the accused, who was the first cousin of the victim, showed that he was upset with the victim not talking to him. The Court observed, “The substantive offence (Section 11) for which punishment is prescribed under Section 12 POCSO, clearly indicates that the precondition for the section to be attracted is that an act, as enumerated therein, is done with sexual intent. Clearly in the subject case, from the allegations against the respondent, no such intention even prima facie is coming forward.”

In such view of the matter, it was held that there was no infirmity in the impugned order. The petition was, therefore, dismissed. [State (NCT of Delhi) v. Baljeet Singh, 2019 SCC OnLine Del 9109, decided on 11-07-2019]

Case BriefsHigh Courts

Bombay High Court: In a petition filed against proceedings pending against the petitioners under the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act), a Single Judge Bench comprising of A.M. Badar J., disposed of the petition, holding that the proceedings could not be quashed.

The petitioners, the mother of the victim and one, Valji Vadher, had been accused of sexually harassing the child (offence defined under Section 11 and punishable under Section 12). Perusing the FIR filed by a police officer and the statement of the victim, the Court held that though Section 11 was not invoked against the mother, there were sufficient grounds to proceed against Petitioner 2 because of the victim’s statement which alleged that the petitioner always looked at her with bad intention.

As per the definition of the offence under POCSO Act, the Court held that “if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act. The question whether the act was with sexual intent is a question of fact”. Therefore, the proceedings were not quashed and the petition was disposed of. [Manju Tejbal Vishwakarma v. Union Territory of Daman & Diu, 2017 SCC OnLine Bom 8895, decided on 27.09.2017]