POCSO Act | Putting Hand On Victim's Shoulder, Pulling Her Clothes Signifies Sexual Instinct Of Accused: Madhya Pradesh High Court

The Madhya Pradesh High Court has observed that the act of the accused of pulling the clothes of the prosecutrix and putting his hand on her shoulder signifies his sexual instinct.

The bench of Justice Prem Narayan Singh observed this while upholding the conviction of the appellant-accused (Nageshwar) under Section 354 of IPC and Section 7/8 of the POCSO Act.

The Prosecution case was that when the victim, a 9th Class student, was returning from her relative's home, the appellant/accused caught her hand with bad intention and pulled her clothes. When she cried, her uncle Manish (PW-3) came and following that the appellant fled away threatening her.

After completing the investigation, a charge sheet was filed and after the conclusion of the trial, the Court convicted the appellant for the offence under Section 354 of IPC and Section 7/8 of the POCSO Act and only sentenced for the offence under Section 7/8 of the POCSO Act for 3 years RI with a fine of Rs.4,000/- and default stipulation.

Challenging his conviction, the accused moved the High Court contending that the age of the prosecutrix was not properly pondered and there were no sexual assault instincts on his part and hence, he prayed for acquittal in this case.

The Court analysed the entire evidence and the order of the trial court to note that the statement of the prosecutrix found support from the statement of Manish (PW-3) and also from the FIR and further, the Court noted that on the medical examination of the victim, the Medical Officer had found an abrasion on the upper part of prosecutrix’s left hand.

Regarding the question as to whether the prosecutrix is coming under the purview of 'child' who is below the age of 18 years, the Court, taking into account the scholar register, the Court found that at the time of the incident, the age of the prosecutrix was less than 15 years.

Further, holding that the testimonies of the prosecutrix, as well as other witnesses, cannot be wiped out on the basis of trivial contradictions, the Court observed thus:

"Virtually, the testimony of prosecutrix should be regarded as an injured witness of the case and it is well settled that criminal jurisprudence attaches great weightage to the evidence of a person injured in the incidence. Such a testimony comes with an in-built guarantee of truth, especially when it is a case of molestation or sexual assault. Such type of witness cannot spare the actual culprit in order to foist an innocent person."

So far as the demurrer of sexual intent is concerned, the Court observed that at the time of the incident, the appellant was 22 years 22-year-old person and he pulled the clothes of the prosecutrix and put his hand on her shoulder, which clearly signifies his sexual instincts.

In view of the aforesaid deliberation and analysis of evidence in its entirety, the Court came to the conclusion that the conviction of the appellant under Section 354 of IPC and Section 7/8 of the POCSO Act by the trial Court, had no infirmity or illegality.

So far as the sentencing part is concerned, the Court noted that this case is related to a sexual offence and looking at the age of the appellant and the age of the prosecutrix, no leniency was required in the circumstances of the case. With this, the appeal of the accused was dismissed.

Case title - Nageshwar vs. State of Madhya Pradesh [CRIMINAL APPEAL No. 6036 of 2021]

Case Citation:

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