Dragging Scarf (Orna), Pulling Hand & Proposing Victim To Marry Not Sexual Assault/Harassment Under POCSO Act: Calcutta HC

The Calcutta High Court has held that the act of dragging 'orna' (women scarf), pulling hand of the victim and proposing her to marry does not come within the definition of either 'Sexual Assault' or 'Sexual Harassment' under the POCSO Act.

The Bench of Justice Bibek Chaudhuri also emphasised on the role of the trial Courts in the assessment of evidence on record as it observed thus:

"...(the role) in its true spirit cannot but be over emphasized because the Trial Court is the basic structure of administration of justice upon which the superior forums are standing. If the basic structure is without any base, the super structure will not only fall, but it will cause denial of justice to an innocent person."

The case in brief

According to the prosecution, when the victim girl was returning from school in August 2017, the accused dragged her 'orna' (scarf/dupatta) and proposed her to marry. He also threatened her to cause injury by throwing acid on her body if the victim girl refused to accede to his proposal.

The trial court, after appreciating the evidence, held that the specific act of the accused of dragging the 'orna' of the victim girl and insisting her to marry him was done with intent to outrage her modesty with sexual intent.

The Trial Judge, Additional Sessions Judge, Kandi, also held that the accused had caused her sexual assault and harassment by physical contact by pulling her hand and advance unwelcome and explicit sexual overtures to marry him.

Therefore, the Trial Judge had held the accused guilty for committing offence under Sections 8 and 12 of the POCSO Act, Sections 354, 354B, 506 and 509 of the Indian Penal Code.

Further, the specific act of the accused was also found to be in the nature of sexual harassment within the meaning of Section 354 A (1)(ii) of the Indian Penal Code.

High Court's observations 

Revisitng the evidence, the Court found that there were discrepancies in the testimony of the victim. The Court also took into account the fact tthat in the FIR, the uncle of the de facto complainant never stated that the accused dragged the hand of the victim, however, in her statement under Section 164 CrPC, recorded after 10 days, the Victim had introduced for the first time that she was pulled by her hands.

Against this backdrop, the Court observed thus:

"Even assuming that the appellant has committed the alleged act of dragging 'orna' and pulling hand of the victim and proposed her to marry, such act does not come within the definition of either sexual assault or sexual harassment. At best for the act of the accused, he may held liable for committing offence under Section 354 A read with Section 506 of the Indian Penal Code."

Therefore, appellant was held not guilty from the charge under Sections 354, 354B and 509 of the Indian Penal Code. The appellant is also held not guilty for the charge under Sections 8 and 12 of the POCSO Act.

However, the order of conviction and sentence passed by the Additional Sessions Judge, Kandi was partly affirmed so far as it related to conviction and sentence passed by the Trial Judge for committing offence under Sections 354(1)(ii) and Section 506 of the Indian Penal Code.

Case title - Nurai Sk. @ Nurul Sk. v. State of West Bengal 

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