Mumbai Court Convicts Man Under POCSO Act For Rubbing 100 Rupees Note On Minor's Lips, Making Derogatory Comment; Awards One Year Rigorous Imprisonment

The man had said “Main tujhe like karta hun aur tu itna kyun bhav kha rahi hai?” while rubbing the note.

Special Judge under Protection of Children From Sexual Offences Act, 2012, SC Jadhav held,

“Moving a note of Rs.100/­ on the lips of the victim and then uttering the words “Tu aisi kyun kar rahi hai tu itna bhav kyun kha rahi" itself suggests that the accused had committed the act with no other reason, but only with sexual intent to commit sexual assault and thus, the accused failed to rebut the presumption.”

Thus, the court sentenced the accused with rigorous imprisonment of one year and fine of Rs. 3000/-.

According to the prosecution, in 2017, when the girl was purchasing vegetables in the market along with her neighbour, the accused stalked her, came and put a 100 rupee note on her lips and said the aforementioned words. She went home and told her mother about it. They went to the house of the accused but he abused them. Then the mother filed a report at the police station.

The accused was prosecuted under sections 354 (Assault or criminal force to woman with intent to outrage her modesty), 354-D (Stalking) of the IPC and section 12 (Punishment for sexual harassment) of the POCSO Act.

From witness testimony as well as the birth certificate of the girl which was unchallenged by the defence, the court concluded that she was a child on the day of the incident.

The girl also testified that the accused used to stalk her while going to college, whistle at her, and pass bad comments. He also threatened her father. She further testified that he threatened that he will stab her and her mother a with knife.

The second witness, her neighbour, corroborated her testimony regarding the incident at the market.

The court noted that the prosecution did not examine independent witnesses, however, the teenager clearly testified about the act committed by the accused and it is corroborated by her mother and her neighbour.

The court noted that nothing on record suggests any previous animosity between the victim and the accused as to falsely implicate him. Further, nothing suggests that she was tutored in any manner. Hence, there is no reason to discard or disbelieve her version, the court held.

The spot panchnama also corroborated the girl’s testimony regarding the spot of the incident.

The court said that the victim’s sole testimony is sufficient to prove the guilt of the accused. “The sole testimony of victim is sufficient to prove the guilt of the accused. Though, prosecution did not examine independent witness, it will not prove fatal to the prosecution case. The victim is also a competent witness”, the court held.

No mother would put her child’s future at stake by making false allegations, the court added. “Moreover, no mother would use her child that too female and put her integrity, character and future at stake by making such false allegations. Therefore, her testimony is reliable and acceptable.”

Section 30 of the POCSO Act provides for presumption of culpable mental state which the accused has to rebut beyond reasonable doubt. The court said the that the act of the accused suggests that he committed it only with sexual intent.

Thus, the court held that the accused is guilty under section 354 IPC and section 12 of the POCSO Act. Since Section 354 of the IPC is aggravated form of offence under section 354­D, no separate finding is required for section 354­D, it added.

Under section 42 of the POCSO Act, a person convicted under the Act as well as section 354-D of IPC is liable to punishment under either statute, whichever provides punishment greater in degree.

The court noted that section 354 of the IPC provides greater degree of punishment and hence no separate punishment for the POCSO Act conviction is required.

While awarding sentence, the court considered mitigating circumstances such as his family’s dependence on the accused as well as the fact that is mother is a cancer patient. The court said that compensation to the victim is not necessary in this case.

The court said that the convict is entitled for set off under section 428 of the CrPC. “The period of substantive sentence awarded to the accused Santosh Jotiram Talekar is already undergone by him as he is in detention during the course of investigation and trial, so there is no necessity for him to serve substantive sentence”, the court added.

Special Public Prosecutor Veena Shelar represented the State while Advocate D. G. Gujral represented the accused.

Case Title – State of Maharashtra Through Deonar Police Station. v. Santosh Jotiram Talekar