Sessions Court, Borivali Division, Mumbai: In a case filed by a minor girl against the accused for offences under Sections 354, 354-D, 504 and 506 of Penal Code, 1860 (IPC) and under Section 12 of Protection of Children from Sexual Offences Act, 2012, (POCSO), S. J. Ansari, J., convicted the accused for the offences punishable under Section 354 of IPC and under Section 12 of POCSO vide Section 235(2) of Criminal Procedure Code (CrPC) and acquitted him of the offences punishable under Section 354-D, 504 and 506 Part-I of IPC vide Section 235(1) of CrPC.
The victim is a 16-year-old girl and the accused is a boy from the neighborhood who is alleged of passing comments upon the victim ‘X’ and said “kya item kidhar ja rahi ho?” while she was returning home from school.
The Court noted that in order to bring home the offence under Section 354 of IPC, the prosecution is required to prove the fact of the accused having either assaulted or used criminal force to a woman with the intention to outrage her modesty or with the knowledge that the said act would likely outrage the said victim’s modesty.
The Court further noted that there is nothing on the record to prove that any persons in the vicinity had witnessed the incident which had occurred between the the victim ‘X’ and the accused on the day and time in question. In such circumstances, there was no plausible reason to disbelieve the clear and cogent evidence of PW 1 the victim ‘X’ regarding the incident and the behavior of the accused, merely on account of the investigating officer not having recorded the statements of any other person.
Thus, the fact of the accused having intentionally touching the victim ‘X’s hair and pulling it, along with calling her an “item”, certainly proves the fact that he has outraged her modesty as “item” is a term used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner and the same clearly indicates his intention of outraging her modesty.
The Court also opined that in order to bring an offence within the provisions of POCSO Act, the prosecution is required to first prove the fact of the victim being a “child” within the meaning of the term as given to it under section 2(d) of the POCSO Act.
The Court perused the birth certificate of the minor victim issued by the Municipal Corporation of Greater Mumbai, which is a public document, and records PW 1 the victim ‘X’s date of birth being 24-12-1999 and was 15 and ½ years on the day of the incident. Therefore, she was a “child” within the meaning of the term as given to it u/s. 2(d) of the POCSO Act.
The Court observed that the prosecution has proved the fact that the accused with sexual intent, used to repeatedly or constantly follow the child and sexually harassing her. The other charges alleged stands not proved due to lack of cogent and reliable evidence.
Thus, the Court sentenced the accused to suffer simple imprisonment for one and half years and to pay a fine of Rs.500/- in default of which, he shall undergo further simple imprisonment for 3 months for the offence punishable under section 354 of IPC and to suffer simple imprisonment for a term of one year and six months and to pay a fine of Rs. 500/- in default of which, he shall suffer further simple imprisonment for 3 months for the offence punishable under section 12 of POCSO Act, 2012.
[State v. Abrar Noor Mohammad Khan, POCSO Special Case No. 106 of 2016, decided on 20-10-2022]
Arunima Bose, Editorial Assistant has put this report together
Advocates who appeared in this case :
Mrs. S. S. Mahatekar, Spl.A.P.P. for the State.
Advocate Ms. Salma Ansari for the Accused