Minor’s Parents ‘Exaggerated’ Their Versions So That POCSO Act Can Be Attracted: Calcutta High Court Acquits Convict In Sexual Assault Case

The Calcutta High Court has set aside the conviction of an accused in a case under POCSO Act on the ground that the prosecution failed to prove the ‘sexual intent’ being involved in the act of the accused as referred under Section 11 of the Act.

The single judge bench of Justice Tirthankar Ghosh observed:

“In cases under the POCSO Act and related offences the statement of the victim assumes importance. Considering the evidence of the victim which lays the foundational facts of this case, I am unable to satisfy myself as to whether any case is made out from the touch or physical contact which would attract the basis of “sexual intent” as is referred to in the explanation to Section 11 of the POCSO Act and also elaborated by the judgment of [Attorney General for India –Vs. – Satish & Anr]”.

The facts of the case state that the father of the victim filed a complaint alleging that his 13-year-old daughter was returning home on June 6, 2016 when the accused stood in front of her and brought her down from bicycle and with an ill-motive tried to cover her face.

On the basis of the complaint, a criminal case was registered under Section 8 (Punishment for sexual assault), Section 12 (Punishment for sexual harassment) of POCSO Act and Section 354 (Assault of criminal force to woman with intent to outrage her modesty) of IPC against the appellant-accused.

The Trial Court on July 25, 2022 held the accused guilty under Section 8 of the POCSO Act and sentenced him to imprisonment for three years and fine of Rs.5,000/- The appellant assailed the impugned judgement and order conviction and sentence passed by the trial court before the High Court.

The counsel appearing for the appellant contended that the evidence given by prosecution witnesses before was contradictory and there were exaggerations which do not support the case of the victim.

It was further submitted that the evidence of the victim nowhere reflects gestures, overacts or overtones which would bring the act of the appellant-accused within the concept of ‘sexual intent’ so as to implicate him under the relevant provisions of the POCSO Act or under Section 354 of the IPC.

On the other hand, the counsel appearing for the complainant submitted that in this case it is an admitted fact that an incident happened which would be transparent from the answer given by the accused under Section 313 of the CrPC. It was further submitted that the provisions of Section 7 of the POCSO Act is satisfied to make out an offence in respect of the act complained of.

The complainant’s counsel placed reliance upon the judgments of the Supreme Court in Attorney General for India v. Satish & Anr (2022) 5 SCC 545; Additional District and Sessions Judge ‘X’ v. Registrar General, High Court of Madhya Pradesh & Ors (2015) 4 SCC 91 and Ganesan v. State Represented by its Inspector of Police (2020) 10 SCC 573.

The court observed that the victim in her statement under Section 164 CrPC stated that she was returning from her tuition by a cycle when the accused was standing at the road. She further stated that she was unable to recollect the name of the accused, however, the accused pushed her from cycle and put his hands on her face and neck, the court noted.

It further noted that there was no allegation in the statement of the victim (PW 1) relating to any physical contact or touch on any of her private parts of her body or attempting to disrobe her or pulling her towards the bush with an ill-motive.

“PW3, father of the victim girl deposed that when his daughter was returning home from her tuition in a cycle the accused forced her to fall down from her cycle and pulled down her wearing pant by pressing hand on her mouth and putting hand on her breast and vagina. PW4, mother of the victim in her evidence before the Court stated that at the relevant point of time when her daughter was returning from tuition on a cycle the accused forced her to fall from cycle, dragged her at the road side by pressing his hand putting hand on her breast and vagina,” said the court.

The court said that the parents of the girl have exaggerated their versions to the extent that in the complaint it was alleged by the father (PW3) of the victim girl that with an ill-motive the accused tried to cover her face and subsequently while deposing before the court he narrated in respect of pulling down of the wearing pant and touching the sensitive parts of the body of the victim.

"Assessment of the evidence of PW3 and PW4 reveal that they have exaggerated their versions so that the provisions of the POCSO Act can be attracted," said the court, while acquitting the convict.

Case Title: Gobinda Bag (Buro) v. The State of West Bengal & Anr.

Coram: Justice Tirthankar Ghosh

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