'Bums Are Private Body Part As Far As We Indians Are Concerned': POCSO Court Holds 22-Yr-Old Guilty Of Sexual Assault

The Court of Additional Sessions Judge MA Baraliya held,

"The term private part is to be interpreted into the context what is meant by it in our society. Google might not be interpreting bums as private part as submitted by the ld. Advocate for the accused, but it is not acceptable interpretation as far as we Indians are concerned."

The Court was dealing with a criminal case filed by the father of a 10-years old girl, who had complained that a boy touched her bum while she was going towards the temple.

Background

It was the prosecution's case that the victim and her friend were going towards the Temple when a boy wearing a black T-shirt, from a group of four boys sitting nearby, approached her and touched her private part. It was alleged that after this incident, all the boys started laughing and the victim rushed back to her home.

It was claimed that the victim narrated the incident to her mother, who in turn called the victim's father and told him that somebody had teased his daughter.

Subsequently, the father rushed to home and took the victim to the spot where she pointed out the boy wearing black T-shirt.

Thereafter, a FIR was lodged for commission of offences punishable under Sections 354 (Assault or criminal force to woman with intent to outrage her modesty) and 354A (sexual harassment) of IPC and under Section 10 (sexual assault) of the POCSO Act, and the22 -years old accused was apprehended the next day, allegedly wearing the same black T-shirt.

Arguments

The defence had denied all allegations and said that the accused had been falsely implicated in the case. The accused raised the following issues before the Court:

• Investigating Officer has failed to record the statement of eye witness, particularly the friend with whom the victim was going to the Temple.
• There was no attempt on the part of the Investigating Officer to record the statement of any of the friends of the accused who were with him.
• Test Identification Parade was not followed to prove that the accused was the same boy who touched the victim.
• Bum is not a private part as alleged by the victim.
• According to the victim's father, he received a call of his wife who said that somebody had teased his daughter. There is much difference between "teasing" and "touching".

Findings

Intention of committing sexual assault

At the outset, the Court rejected the accused' submissions that bum is not a private part. It held that the word private part has to interpreted in Indian context. It said,

"Accused had touched her bums, the private part, obviously with the intention to sexually assault upon her…Accused by touching or patting on her, bums, has committed the act with full knowledge and intention to outrage her modesty and to assault her sexually."

In this context, the Court referred to the definition of 'Sexual assault' under Section 7 of the POCSO Act. the provision states:

"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

In the case at hand, the Bench noted that the accused had not touched either vagina, breast or anus of the girl, but had touched her bums.

"The touching, as stated under Section 7 of the POCSO Act, 2012, if, is to the other organs, those categorized, then it must be with the sexual intention. So obviously touching bum of the girl cannot be said to be without sexual intention," the Bench said.

It added that the subsequent conduct of the accused and his friends, who were laughing at the victim, is also indicative of their state of mind. It said,

"Past conduct of accused laughing at her and then touching her manifests that it was all with sexual intention, to grab the chance. Sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from the attending circumstances of the case."

The Bench also referred to the case of Kanwarpal Singh Gill (famously known as butt slapping case), whereby the then Director General of Police was convicted for slapping on the posterior of the prosecutrix, an IAS Officer, by the trial court. The said conviction was also confirmed by the Supreme Court in appeal.

Drawing same analogy in the case at hand, the Bench said,

"As the victim was child 10 years old on the date of incident, provision of POCSO Act attracts for the similar kind of his act touching the posterior of the victim. Thus the prosecution has succeeded in proving that the accused has committed the said act with sexual intention and outraged her modesty."

Touching bum is not mere teasing

The Court rejected the accused' contention that the alleged case was a mere teasing incident. It held,

"The victim in her language said to her parents and before the police that accused had touched her private part. At the relevant time, she was hardly 10 years old. So she in her language expressed her ordeal. So there cannot be any confusion that she was not only teased but had been touched inappropriately by the accused."

So far as reference to the phone conversation between the victim's parents is concerned, where her mother said that somebody had "teased" their daughter, the Court said,

"The conduct of the father in rushing home immediately having received call itself shows that something more has happened with his daughter than teasing. It was telephonic conversation,so it is but natural that wife instead giving details,on phone, simply said that, their daughter had been teased. Avoiding to give details on phone does not mean that daughter was teased only without touching."

Victim cannot be made to pay cost of infirmities in investigation

The accused had attempted to discredit the prosecution case by stating that (i) neither his friends nor the victim's friend were examined (ii) there was no conclusive proof that he was the boy who touched victim's bums.

The Court held that non-examination of other eye-witnesses will not be fatal to the case. So far as the victim's friend is concerned, the Court observed,

"very few people like to involve in such incident even though incident has been seen by them. So merely for the reason that there are no eye witnesses to the incident and that the friend who was with the prosecutrix has not been examined, cannot be the reason to discard and disregard the testimony of the victim girl."

Inasmuch as the accused' friends are concerned, the Court said,

"it is not the case that none of the four boys teased the victim nor touched her inappropriately. One of the boy had certainly touched her inappropriately. The question is then who is the said boy. Had the said boy was other than the accused, accused must have come before the Court with certain name of his friend who was with him on the date of incident and responsible for touching inappropriately to victim."

Lastly, the Court said that it is satisfied that it is the accused who touched the victim inappropriately. It noted,

"According to victim, the said particular boy was wearing black T-shirt. Victim has pointed the particular boy to her father wearing black T-shirt. It is a matter of record that the police didn't recover the said black T-shirt from the accused to confirm his identity. To me, it is the set back in the investigation of the police and innocent victim is not supposed to pay its cost.

As the accused was apprehended on the very next day and was shown to the victim's father, accused is also seen in the same black T-shirt which he was wearing on the date of incident, so to me, the identity of the accused being the same boy has been established beyond reasonable doubt."

In view of the above, the accused was convicted for the offences of sexual assault and outraging modesty of a woman under relevant provisions of POCSO Act and IPC, and was sentenced to suffer rigorous imprisonment for five years.

Case Title: State of Maharashtra v. Sahar Ali Shaikh

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