POSTED ON FEBRUARY 21, 2021

Mumbai court gives man 5 years in jail

The court convicted a 22-year-old man, rejecting his defence that he only touched the child’s buttocks and not her private parts. The man was also fined Rs 10,000.

The court had to consider whether a girl’s buttocks is her private body part and touching it would amount to sexual assault

Touching posterior of a minor amounts to sexual assault

Mumbai: A court in Mumbai, hearing a case registered under the Protection of Children from Sexual Offences (POCSO) Act, has convicted a 22-year-old man for touching a minor girl’s posterior, saying the gesture proves that it was done with sexual intent to outrage the child’s modesty.

Sessions judge of the special POCSO court Madhuri Anup Baraliya said the act of touching or patting a child’s buttocks attracts provisions of POCSO — a law meant to deal with cases of child abuse. 

Such an act, the judge added, was done with full knowledge and intention to outrage the child’s modesty, and to assault her sexually.

The judge said it was obvious that touching the buttocks of the girl cannot be said to be without sexual intention.

The court on 12 February sentenced the man to five years of imprisonment and imposed a fine of Rs 10,000, rejecting his defence that patting the buttocks was not an offence under POCSO.

The case was registered on the basis of a complaint filed by the 10-year-old girl’s parents on 17 September 2017, alleging the accused touched her posterior when she was on her way to a temple.

The accused challenged his prosecution under POCSO on the ground that he never touched the victim’s private parts, but only her posterior. It was argued that the prosecution failed to bring on record evidence to prove the allegation beyond reasonable doubt.

However, the judge rejected the arguments of the accused and held that the term private parts is to be interpreted in the context of what is meant by it in our society.

She refused to go by the Google interpretation, as was suggested by the accused in his defence.

“Google might not be interpreting bums as a private part, as mentioned by the accused’s advocate, but it is not an acceptable interpretation as far as we Indians are concerned,” the judge said.

“The accused has not touched either vagina, breast or anus of the girl, but touched her bums. The touching, as stated under section 7 of POCSO Act, 2012, if is to the other organs, those categorised, then it must be with sexual intention,” the court said.

Judge relied on SC judgment involving KPS Gill

Judge Baraliya relied upon the 2005 Supreme Court judgement involving former Punjab police chief K.P.S. Gill, who was found guilty of outraging the modesty of an IAS officer after he slapped her on her posterior.

The top court had in that case held that by touching the body of the complainant with culpable intention, the accused had committed the offence.  

Additional Sessions Judge of the Special POCSO court in Mumbai has held that a girl’s posterior is her private part and a person touching it would be liable to be convicted under the Protection of Children from Sexual Offences (POCSO) Act.

The court was considering the prosecution’s story that suggested that the 10-year-old survivor (now 13-14 years), and her friend were going towards a 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 survivor rushed back home.

After narrating her experience, the father lodged an FIR for commission of offences punishable under sections 354 (Assault or criminal force to woman with intent to outrage her modesty), 354A (sexual harassment) of the Indian Penal Code and under section 10 (sexual assault) of the POCSO Act against the 22-year-old who was apprehended the next day.

The ASJ observed a few instances when the survivor went out to buy bread and other errands, the accused laughed at her. “Past conduct of the 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,” held the court.

Thus, the court found the accused guilty of sexual harassment, sexual assault under the relevant sections of IPC and POCSO Act and sentenced him to five years of rigorous imprisonment, with fine of rupees ten thousand.