[POCSO Act] 'Lifting Dhothi And Asking Minor To Measure Penis Amounts To Sexual Harassment': Kerala High Court

Justice A. Badharudeen observed;

“In this case, as I have already pointed out, lifting of dhothi to show his private part, and then asking the victim to measure his penis, are the allegations. The same would squarely attract Section 11(1) of the PCSO Act as well as under Section 509 IPC, prima facie.”

The accused had filed a petition challenging the dismissal of his discharge petition by the trial court. The victim had given a statement before the police that the accused while standing on a property on the opposite side of the kitchen of her house, called her attention and lifted his dhothi.

It was stated that she got afraid and called for her mother. When the mother, mother's sister and grandmother reached there, the accused ran away towards the road.

The accused was booked for sexual harassment under the POCSO Act and insulting the modesty of a woman under the Indian Penal Code. The petitioner argued that he should be discharged as no offence can be made out from the statement of the victim and other witnesses. He further added that there were no materials to show that the accused had sexual intent.

The Court found that the statements prima facie attracted the offences alleged against him. On the question of intent, the Court said that it is a question of fact. Moreover, as per Section 30 of POCSO, the court shall presume culpable mental state. It is upon the accused to prove otherwise. This is to be proved in the trial court.

Accordingly, the petition was dismissed.

Counsel for the Petitioner: Advocates Eldho Paul, Tessy Jose

Counsel for the Respondents: Senior Public Prosecutor Renjit George

Case No: Crl. Rev. Pet. 1084/ 2023

Case Title: XX v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 453