Now the question for consideration of this court is,
whether the ‘pressing of breast’ and ‘attempt to remove salwar’
would fall within the definition of ‘sexual assault’ as defined
under Section 7 and punishable under Section 8 of the POCSO
Act. For better appreciation of evidence, it would be necessary to
look into the definition of ‘sexual assault’, which is reproduced
below:
7. Sexual assault – 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.
As per this definition, the offence involves the following
necessary ingredients :
(i) Act must have been committed with sexual
intent.
(ii) Act must involve touching the vagina, penis,
anus, or breast of the child.
or
making the child touch the vagina, penis, anus or
breast of such person or any other person.
or
doing any other act with sexual intent which
involves physical contact without penetration.
17. The appellant/ accused is convicted for the offence of
‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.
18. Evidently, it is not the case of the prosecution that
the appellant removed her top and pressed her breast. The
punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided
for the offence, in the opinion of this Court, stricter proof and
serious allegations are required. The act of pressing of breast
of the child aged 12 years, in the absence of any specific detail
as to whether the top was removed or whether he inserted his
hand inside top and pressed her breast, would not fall in the
definition of ‘sexual assault’. It would certainly fall within the
definition of the offence under Section 354 of the Indian Penal
Code.
25. The learned APP read out Section 7 of the POCSO
Act, which defines sexual assault and submitted that the act
which has been proved by the prosecution “pressing of breast”
comes within the definition of sexual assault under Section 7 of
the POCSO Act.
26. It is not possible to accept this submission for the
aforesaid reasons. Admittedly, it is not the case of the
prosecution that the appellant removed her top and pressed
her breast. As such, there is no direct physical contact i.e. skin
to skin with sexual intent without penetration.
27. In view of the above discussion, this Court holds that
the appellant is acquitted under Section 8 of the POCSO Act
and convicted under minor offence u/s 354 of IPC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 161 OF 2020
Satish Bandu Ragde, Vs The State of Maharashtra
CORAM : PUSHPA V. GANEDIWALA, J.
Dated: JANUARY 19, 2021.
Heard Shri Sk. Sabahat Ullah, learned counsel for
the petitioner and Shri Khan, learned APP for the respondent.
2. This is an appeal against the judgment and order dated
05.02.2020 in Special Child Protection Case No. 28 of 2017 passed
by the Extra Joint Additional Sessions Judge, Nagpur, by which the
appellant is convicted for the offence punishable under Sections
354, 363 and 342 of the Indian Penal Code (hereinafter referred to
as IPC) and Section 8 of the Protection of Children from Sexual
Offences Act, 2012, (hereinafter referred to as POCSO Act), in
Crime No. 405 of 2016 registered at Police Station Gittikhadan,
Nagpur, District – Nagpur.
3. For the offence punishable under Section 8 of the
POCSO Act read with Section 354 of the IPC, the appellant is
sentenced to suffer R.I. for three years and to pay fine of Rs. 500/-,
in default of fine to suffer R.I. for one month.
For the offence punishable under Section 363 of the IPC,
the appellant is sentenced to suffer R.I. for two years and to pay fine
of Rs. 500/-, in default of fine to suffer R.I. for one month.
For the offence punishable under Section 342 of the IPC,
the appellant is sentenced to suffer R.I. for six months and to pay
fine of Rs. 500/-, in default of fine, to suffer R.I. for one month.
All the substantive jail sentences were directed to run
concurrently. The appellant is given set off for the period of
sentence, he has already undergone.
4. The prosecution story, in brief, is as under :
i) On 14.12.2016, the informant (mother of the
prosecutrix) (PW-1) lodged a report at police station Gittikhadan,
Nagpur, stating therein that the appellant took her daughter
(prosecutrix) aged about 12 years, on the pretext of giving her
guava, in his house and pressed her breast and attempted to remove
her salwar. At that point of time, the informant reached the spot
and rescued her daughter. Immediately, she lodged First
Information Report. On the basis of the said FIR, crime came to be
registered against the appellant / accused vide Crime No. 405 of
2016 (Exh. 1) for the offence punishable under Sections 354, 363
and 342 of the IPC and under Section 8 of the POCSO Act.
5. The police started investigation. After investigation,
charge-sheet came to be filed in the Special Court, Nagpur, against
the appellant.
6. The Special Court framed charge (Exh. 11) against the
appellant / accused under Sections 361, 354, 342 and 309 of the
IPC and under Section 8 of the POCSO Act. The said charge was
read over and explained to the appellant / accused, to which he
denied. His plea was recorded.
7. In order to establish the guilt against the appellant /
accused, the prosecution examined in all five witnesses and also
brought on record the relevant documents.
PW-1 is the informant - mother of the prosecutrix.
PW-2 is the prosecutrix.
PW-3 is the prosecution witness (neighbour).
PW-4 is a WPSI – Kinake.
PW-5 is the PSI who registered crime against the
appellant / accused on the report of the informant.
8. The Special Court recorded the statement of the
appellant / accused under Section 313 of the Code of Criminal
Procedure.
9. After hearing both the sides, the learned Court found
the appellant / accused guilty of the crime registered against him
and passed the judgment of conviction and sentenced him as above.
The learned Special Court, however, acquitted the appellant /
accused of the offence punishable under Section 309 of the IPC.
This judgment of conviction is impugned in this appeal.
10. I have heard Shri Sabahat Ullah, learned counsel for
the appellant and Shri Khan, learned Additional Public Prosecutor
for the respondent - State. I have also perused the record with the
assistance of both the counsel.
11. At the outset, the informant – PW-1 and the
prosecutrix – PW-2 are the star witnesses. The age of the
prosecutrix at the relevant time was 12 years and this fact is
not seriously disputed by the learned counsel for the appellant.
12. The informant - PW-1 - the mother of the
prosecutrix deposed that the incident took place on
14.12.2016. On that day at about 11.30 AM, her daughter –
the prosecutrix (name kept undisclosed) went to bring guava.
As she did not come back for a long time, she started searching
for her. Her neighbour told her that the appellant, who was
staying in the vicinity of their house, took her daughter to his
house and showed her the house of the appellant. PW1 went
there calling “Laxmi, Laxmi”. She saw the appellant coming
down from the first floor. She asked the appellant about the
whereabouts of her daughter. He denied the presence of the
prosecutrix in his house. PW-1 searched for her daughter on
the ground floor and then she went up to first floor. The room
was bolted from outside. She opened it and found her
daughter. Her daughter was crying. She took out her daughter
from that room and her daughter narrated the incident that on
the pretext of giving guava to her, the appellant brought her to
his house and pressed her breast and when he tried to remove
her knicker, she shouted. Thereafter he went out, after bolting
the room from outside. Immediately, PW-1 along with her
daughter proceeded for Police Station and lodged report.
13. PW-2 – Prosecutrix testified that on the day of
incident, when she was going to bring guava, the appellant
caught her hand and told her that he will provide guava to her
and he took her to his house. He tried to remove her Salwar
and pressed her breast. Then she shouted. The appellant
pressed her mouth by his hand. The appellant went down by
closing the door of the room from outside. Thereafter, her
mother opened the door and entered the room and brought her
outside. Then they went to Police Station for lodging report.
14. PW-3, the neighbour, is examined on the point that
she had heard the shouts of a girl and she informed PW-1
about it.
15. A perusal of the testimony of PW-1 and PW-2 on the
point of incident would reveal that both the witnesses are
consistent on the point that the appellant pressed the breast of
the prosecutrix. With regard to removing of knicker, though in
her chief PW-1 stated that the appellant/ accused was trying to
remove knicker of her daughter, however, in cross examination
she has corrected her statement and deposed that she told the
police that the appellant tried to remove Salwar of her
daughter. The prosecutrix deposed about removing of her
salwar. So there is no confusion with regard to whether the
accused tried to remove salwar or knicker.
16. Now the question for consideration of this court is,
whether the ‘pressing of breast’ and ‘attempt to remove salwar’
would fall within the definition of ‘sexual assault’ as defined
under Section 7 and punishable under Section 8 of the POCSO
Act. For better appreciation of evidence, it would be necessary to
look into the definition of ‘sexual assault’, which is reproduced
below:
7. Sexual assault – 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.
As per this definition, the offence involves the following
necessary ingredients :
(i) Act must have been committed with sexual
intent.
(ii) Act must involve touching the vagina, penis,
anus, or breast of the child.
or
making the child touch the vagina, penis, anus or
breast of such person or any other person.
or
doing any other act with sexual intent which
involves physical contact without penetration.
17. The appellant/ accused is convicted for the offence of
‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical
contact with sexual intent without penetration’ is an essential
ingredient of the offence. The definition starts with the words -
“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…...’ The words ‘any other act’ encompasses
within itself, the nature of the acts which are similar to the acts
which have been specifically mentioned in the definition on the
premise of the principle of ‘ejusdem generis.’ The act should be of
the same nature or closure to that.
18. Evidently, it is not the case of the prosecution that
the appellant removed her top and pressed her breast. The
punishment provided for offence of ‘sexual assault’ is imprisonment
of either description for a term which shall not be less than three
years but which may extend to five years, and shall also be liable to
fine. Considering the stringent nature of punishment provided
for the offence, in the opinion of this Court, stricter proof and
serious allegations are required. The act of pressing of breast
of the child aged 12 years, in the absence of any specific detail
as to whether the top was removed or whether he inserted his
hand inside top and pressed her breast, would not fall in the
definition of ‘sexual assault’. It would certainly fall within the
definition of the offence under Section 354 of the Indian Penal
Code. For ready reference, Section 354 of the Indian Penal
Code is reproduced below :
“354. Assault or criminal force to woman with intent
to outrage her modesty. - Whoever assaults or uses
criminal force to any woman, with the intention to
outrage her modesty, shall be punished with
imprisonment of either description for a term which
shall not be less than one year but which may extend
to five years, and shall also be liable to fine.”
19. So, the act of pressing breast can be a criminal
force to a woman/ girl with the intention to outrage her
modesty. The minimum punishment provided for this offence
is one year, which may extend to five years and shall also be
liable to fine.
20. It is the basic principle of criminal jurisprudence
that the punishment for an offence shall be proportionate to
the seriousness of the crime.
21. Section 7 of the POCSO Act, defines sexual assault
and the minimum sentence provided is three years and Section
354 of the Indian Penal Code, which is related to outraging the
modesty of a woman, prescribes minimum sentence of one
year. In the instant case, having regard to the nature of the
alleged act by the appellant and having regard to the
circumstances, in the opinion of this Court, the alleged act fit
into the definition of the offence as defined in Section 354 of
the Indian Penal Code.
22. The learned counsel for the appellant strongly
argued with regard to testimony of PW-1, she being a hearsay
witness. No doubt PW-1 does not claim to have seen the
incident, however, her testimony would be relevant and
admissible in evidence under Section 6 of the Evidence Act.
The principle of res gestea would be applicable, being part of
the same transaction. Evidently, she went to the house of the
accused searching for her daughter, she saw the accused
coming down from the first floor, she inquired with the
appellant - accused about her daughter, he refused her
presence, she searched for her daughter on the ground floor,
she went upwards, she found the door of the room bolted from
the outside, she opened the door, she found her daughter
crying, she brought her daughter out of room, her daughter
narrated the incident to her. All these events form the parts of
the same transaction.
23. The learned counsel for the appellant also argued
with regard to the mental capacity of the girl, which was
observed by the learned trial Court while recording her
testimony. It is true that as per demeanor of the witness, she
might not have that mental intelligence, however, the learned
counsel could not point out from the record that she was not a
competent witness and her answers to the questions were not
rational. Secondly, immediately after the incident, she narrated
the incident to her mother and on that basis the First
Information Report came to be lodged and on material point of
facts, the testimonies of both, mother and daughter are
consistent.
24. PW-3 is the witness, who informed PW-1 about the
fact that she heard the noise of her daughter from the house of
the appellant. The learned counsel pointed out some omissions
in her testimony with regard to shouting of the girl “Maa Maa”.
These are not the material omissions to disbelieve the
prosecution story. Fact remains that she informed PW-1 that
she heard shouts from the house of the appellant and PW-1
went there and she found her daughter. Other witnesses are
formal in nature.
25. The learned APP read out Section 7 of the POCSO
Act, which defines sexual assault and submitted that the act
which has been proved by the prosecution “pressing of breast”
comes within the definition of sexual assault under Section 7 of
the POCSO Act.
26. It is not possible to accept this submission for the
aforesaid reasons. Admittedly, it is not the case of the
prosecution that the appellant removed her top and pressed
her breast. As such, there is no direct physical contact i.e. skin
to skin with sexual intent without penetration.
27. In view of the above discussion, this Court holds that
the appellant is acquitted under Section 8 of the POCSO Act
and convicted under minor offence u/s 354 of IPC and
sentenced him to undergo R.I. for one year and to pay fine of
Rs.500/-, in default of fine to suffer R.I. for one month. The
sentence for the offence punishable under Section 342 of the
Indian Penal Code i.e. six months and fine of Rs.500/-, in
default to suffer R.I. for one month, is maintained. The
accused is on bail. His bail bond stands forfeited. Issue Nonbailable
warrant against the appellant – accused. All the
substantive jail sentences shall run concurrently and the
appellant – accused is entitled for set off under Section 428 of
the Code of Criminal Procedure.
28. Criminal Appeal stands disposed of accordingly.
JUDGE
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