BY:- SHABBIR LIMKHEDAWALA
In the Nagpur Bench of Bombay High Court
|NAME OF THE CASE
|Satish Ragde v/s State of Maharashtra
|Criminal Appeal no. 161 of 2020
|DATE OF THE CASE
|19th January, 2021
|The State of Maharashtra through Police Station Officer, Gittikhadan, Nagpur.
|Pushpa V. Ganediwala
|Criminal Procedure Code; Indian Penal Code; Protection of Child Against Sexual Offences Act (POCSO); Indian Evidence Act.
|Section 313 & 428 of Criminal Procedure Code; Section 342, 354, 361 & 363 of Indian Penal Code; Section 7 & 8 of POCSO Act; Section 6 of Indian Evidence Act.
The accused ‘Satish Ragde’ tried to commit sexual assault against a 12 year old girl. The offender, lured into the victim to her house in order to provide her guava, and with malicious intentions, groped the breast of the minor girl and just as he was attempting to remove her salwar, her mother approached his house. Her mother with their neighbor searched his house and found her daughter in a room locked from outside. The daughter then narrated the whole incident to her mother and they reported the matter to the police station.
The Police filed the charge sheet before the Special Court as the case dealt with the POCSO Act. The Special Court had sentenced the accused to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1500/- after recording his conviction under Section 342, 363 & 354 of Indian Penal Code and Section 8 of the POCSO Act.
The Accused approached the High Court of Bombay, where J. Pushupa Ganediwala acquitted the accused under section 8 of POCSO Act and convicted him for outraging the modesty & wrongfully confining the prosecutrix under section 354 & 342 of IPC for a period of 1 year of rigorous imprisonment and a fine of Rs500. Also, a non-bailable warrant was issued against the accused.
The case deals with an appeal filed by the accused before Nagpur Bench of Bombay high Court against the judgment and order dated 05.02.2020 in Special Child Protection Case No. 28 of 2017 passed by the Extra Joint Additional Sessions Judge, Nagpur. The Accused had wrongfully confined a minor girl aged 12 years in order to commit rape against her. He had touched private parts of minor girl and had tried to remove her salwar just when he was stopped by the girl’s mother.
In the given case, the accused has been convicted for the offences of outraging women’s modesty, Wrongful Confinement & Kidnapping under section 354, 342 & 363 of Indian Penal Code, and for Sexual Assault under section 8 of POCSO Act with rigorous imprisonment for 3 years and fine. The offender had moved to the High Court against the order passed by The Special Court.
BACKGROUND OF THE CASE
The POCSO Act is a law which provides a special protection to the minor victim beyond IPC. The object of the POCSO Act is to protect the children from sexual assault and harassment, and acknowledge the vulnerability of the minor. Because of the minor victim’s physical & mental vulnerability and the abuser’s capacity to overcome them easily, sexual assaults against minors are particularly tough.
The Case is of sexual harassment against a 12 years old girl. The Joint Additional Sessions Judge of Nagpur had taken note of the circumstantial evidence as well as the testimony of the witnesses. The Special Court sentenced the accused to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1500/- after recording his conviction under Section 342, 363 & 354 of Indian Penal Code and Section 8 of the POCSO Act.
FACTS OF THE CASE
On 14.12.2016 the prosecutrix aged about 12yrs went to bring guava, but did not returned for a long time, the mother went out to search for her. Their neighbor notified the mother that she had seen the accused bringing the prosecutrix to his residence and showed her his residence. The mother reached the house and asked the accused about the whereabouts of her daughter which he denied to be known. The mother than suspected & searched the house of the accused. While searching the first floor, she found her daughter crying in a room locked from outside. The mother took her outside. The prosecutrix was frightened and soon she narrated the whole scene to her mother that the accused on the pretext of giving her guava, took her in his house and pressed her breast and she shouted when he attempted to remove her salwar. Immediately, the mother lodged FIR against the accused. Police after conducting an investigation filed the charge-sheet before the Special POCSO Court, Nagpur.
The Special Court convicted the accused under Sections 354, 363 & 342 of IPC for outraging girl’s modesty, kidnapping & wrongful confinement & under section 8 of POCSO Act for sexual assault and punished him with rigorous imprisonment for 3yrs with fine of Rs500.
ISSUE RAISED BEFORE THE COURT
- Whether the Accused shall be held guilty for sexual harassment under section 7 & 8 of POCSO Act?
- Whether pressing prosecutrix breast without having a skin-to-skin contact be considered under the definition of Sexual Assault provided in Section 7 of the POCSO Act and punishable under Section 8 of the POCSO Act?
- Whether ‘attempt to remove salwar’ of the prosecutrix would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act?
ARGUMENTS FROM THE APPELANT SIDE
- The Learned Counsel of the Appellant (accused) argued vehemently against the minor girl’s mother’s testimony. He argued that she was a hearsay witness and has not witnessed the incident by herself. Hence, her testimony may have some loopholes which might project that the crime committed was of brutal manner.
- The Learned counsel also contended over the girl’s mental ability, which was noted by the learned trial Court when recording her evidence. He contended that based on the minor girl’s behavior, she may possibly lack mental intelligence.
- The Learned Counsel of the Appellant (accused) contended that the prosecution-proven conduct of “pressing of breast” falls under the scope of sexual assault under Section 7 of the POCSO Act cannot be accepted. As it is not the prosecution’s argument that the appellant removed her top and touched her breast. As a result, there is no direct physical contact, i.e. skin to skin with sexual intent without penetration.
ARGUMENTS FROM THE RESPONDENT SIDE
- The Learned Counsel for the state, provided the testimony of the three witnesses, i.e., The Minor girl, her mother and their neighbor.
- A consideration of the minor’s and her mother’s testimony on the point of incident reveals that both witnesses agree that the appellant touched the prosecutrix breast and tried to remove her salwar.
- The Learned Counsel also read out the definition of “Sexual Assault” under Section 7 of POCSO Act. Which clearly states that a ‘physical touch with sexual intent without penetration’ is a necessary component of the offence.
- Also, the phrase “any other act” embraces the type of acts that are comparable to the actions expressly stated in the definition on the basis of the concept of “ejusdem generis”. The act should be of the same sort or close in nature to the previous one. Hence, the acts of the accused fell under the definition of section 7 of POCSO Act and he should be punished for the offence of Sexual Assault under section 8 of POCSO Act.
- As per this definition of ‘Sexual Assault’ provided under Section 7 of POCSO Act, the offence involves the following necessary ingredients:
- Act must have been committed with sexual intention.
- Act involves touching 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.
- Act with sexual intent which involves physical contact without penetration.
- Section 8 of POCSO Act defines the punishment for sexual assault mentioned under section 7 of the act, which states that, “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
- According to Section 342 of Indian Penal Code, whoever illegally confines another person shall be punished by imprisonment of up to a year, or a fine up to one thousand rupees, or both.
- Section 354 of Indian Penal Code lays down that any person who attacks or uses unlawful force against any woman with the intent to offend or knowing that he would likely offend her modesty is punishable by imprisonment of any sort for a time up to two years, a fine, or both.
- According to section 361 & 363 of Indian Penal Code, Anyone who takes or persuades any minor under the age of 18, or any individual of unsound mind, out of the possession of the lawful guardian of such minor or person, without such guardian’s consent, is said to kidnap such minor or person from lawful guardianship. Such person shall be imprisoned for any term up to 7 years and fine.
- Section 313 of Criminal Procedure Code deals with the powers to examine the accused. In every investigation or trial, the Court can put such inquiries to allow the accused to personally explain any facts that exist in the evidence against him, without warning him.
- Section 428 of Criminal Procedure Code provides that when a convicted person is sentenced to imprisonment for a term that is not imprisonment in default of payment of a fine, the period of detention he served during the investigation, inquiry, or trial of the same case and before the date of conviction is set off against the term of imprisonment imposed on him on conviction. On such conviction, such person’s obligation for imprisonment is limited to the remainder, if any, of the sentence of imprisonment imposed on him.
- Section 6 of Indian Evidence Act states that even though the facts are not in dispute, but are so linked to a fact in question that they form part of the same transaction, whether they happened at the same time and place or at separate times and locations, are significant.
The Court mentioned that the learned counsel was unable to establish from the record that the testimony of the minor girl’s mother and the minor girl could not be considered or they were not competent witnesses. The responses of the girl to the questions were not illogical. Moreover, she told her mother about the event immediately after it happened, and on that basis, the First Information Report was filed. The testimonies of both mother and daughter are consistent and valid under section 6 of Evidence Act, i.e., the principle of Res gestate would be applicable.
The Court also considered that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is essential ingredient for the offence and the Court believed that stronger proof and severe allegations are necessary.
The Court also stated that whether the accused removed the top of the prosecutrix or inserted his hand while groping her breasts is unknown, which would not constitute a direct physical contact or “Skin-to-Skin” contact between the accused and the victim as per the section 7 of POCSO Act. The act committed by the accused would apparently fall under the definition of “Outraging the modesty of a women” provided under Section 354 of the Indian Penal Code.
The bench acquitted the accused under section 8 of POCSO Act and convicted him for outraging the modesty & wrongfully confining the prosecutrix under section 354 & 342 of IPC for a period of 1 year of rigorous imprisonment and a fine of Rs500. Also, a non-bailable warrant was issued against the accused.
CONCLUSION & ANALYSIS
The judgment passed by the additional Judge, J. Pushpa Ganediwala, has generated outrage on social media, as many people have questioned, how it may impact the general understanding of sexual assault, and would it let perpetrators get away with a clear intention of assaulting the minor but can’t be proven under “sexual assault” with less severe punishment.
Bombay High Court’s interpretation as a result reduced the punishment of the accused. Whereas, the accused should have been be convicted with severe punishments directed under the POCSO Act, as the minor is more vulnerable. Therefore, the given interpretation of the court goes against the basic idea of the statute.
The Court reading the requirement of a ‘skin to skin’ contact as a pre-condition to constitute the offence of sexual assault under Section 7 of the POCSO Act is problematic for multiple reasons.
- The statute is silent on the requirement of a ‘skin to skin’ contact. The relevant part of Section 7 merely says that, “…or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”. The court has wrongly interpreted “physical contact” to mean ‘skin to skin contact’.
- Section 7 begins with the phrase “whoever, with sexual intent touches” The term ‘touch’, too, does not imply only skin-to-skin contact. Thus, since it was clearly established that the accused pressed the victim’s breasts, the offence of sexual assault was complete, irrespective of whether the molestation was over or under the clothes.
- Also, if the legislature wished to restrict the scope of Section 7, it would have explicitly mentioned the requirement of a skin-to-skin contact. Therefore, the court can not apply an interpretive methodology to severely restrict the punitive scope of this Section and trivialize legal provisions aimed at providing deterrence against instances of sexual assault against children.
Also, while passing the judgments, the bench has not given much consideration to the intentions of the accused and the fact that victim is a minor and is entitled to greater protection from sexual offences. Also, in the case of Jagar Singh v State of Himachal Pradesh, it was well-settled that when two interpretations are possible, then the interpretation in favor of the minors should be adopted by the court to meet the ends of justice.
Furthermore, the judgment would have been applicable in the absence of POCSO Act. The period before POCSO Act was similar to the one witnessed by the order passed by the bench. In the Pre-POCSO period the law that governed sexual assault was IPC, which does not treat children under any special provision and same as adults.
If the POCSO Act was not amended, the minor (below 18 years) would have been abused more vulnerably as they are innocent and unaware of such offences. Also, any non-penetrative sexual assault or against a boy would not have been established under the provisions of IPC. In the absence of POCSO Act, there would be no law penalizing any child pornography and the offenders would have fled easily. The POCSO Act has created a barrier for the offenders with stringent punishments and wide scope of the sections in them which makes it difficult to escape from the punishment.