POCSO Act | Taking Child To A Closed Room, Rubbing Her Thigh With Hands Shows 'Sexual Intent' Of Accused: MP High Court

Justice Prem Narayan Singh, presiding over the bench, emphasized that what constitutes 'outraging of female modesty' is nowhere defined, but the essence of a woman's modesty is her sex and the culpable intention of the appellant is the crux of the matter.

The Court further added that a woman's reaction holds significance, still, its absence may not always be decisive and this principle holds even more weight in the case of a 6-year-old child, wherein, to ascertain the accused's intention, the actions and behaviour of the accused become crucial factors to consider.

These observations were made by the single judge while affirming a judgment of Additional Sessions Judge, Bhanpura convicting the accused for the offence punishable under Section 363 of the IPC and Section 9(M)/10 of the POCSO Act and sentencing him to undergo 5 years RI.

As per the prosecution's case, on January 31, 2020, the mother of a 6-year-old girl (victim) lodged a police report against the accused stating that he abducted her (prosecutrix) and took her to his home where the appellant touched the prosecutrix illegally to outrage her modesty.

Challenging his conviction, the accused primarily argued before the HC that the age of the prosecutrix was not properly pondered upon by the Trial Court and that there was no sexual assault instincts on the part of the appellant that had been established by the prosecution.

At the outset, the Court took into account the scholar's registers as well as the admission card to conclude that there was sufficient evidence to prove that at the time of the incident, she was only 6 years old.

Further, regarding the contention of the accused that only on account of touching or rubbing thigh, a presumption of sexual intention cannot be established, the Court observed that the appellant was not able to refute the statement regarding rubbing hands on the prosecutrix's thigh.

The Court added that he took the prosecutrix to his closed room, placed her on his lap and during that time, his act of rubbing her thigh was sufficient to gather his sexual intention, hence, the contention of counsel for the appellant regarding sexual intention was found to be unsubstantial.

Further, concluding that the appellant had used criminal force upon the child to outrage her modesty, the Court said that since the accused was liable to be convicted under Section 9(m)/10 of the POCSO Act, he was not required to be punished under Section 354 of IPC.

So far as the offence punishable under Section 363 of IPC was concerned, the Court noted that it was also well proved that the accused took the minor child/prosecutrix in his closed room and hence, the offence under Section 363 IPC was also proved.

Under these conditions, upholding the findings of the trial Court regarding the offence punishable under Section 363 of IPC and Section 9(M)/10 of the POCSO Act, the Court affirmed the punishment of five years RI imposed upon the accused.

Case title - PRAHALAD GUJAR vs. STATE OF MADHYA PRADESH

Case Citation: 2024 LiveLaw (MP) 41

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