Interpreting the act of touching the posterior (buttocks) of a 10-year old girl as sexual assault, a special POCSO court in Mumbai classified the act as touching the ‘private part’ constituting ‘sexual assault’ under POCSO Act.
The Court was dealing with a criminal case filed by the father of a 10-years old girl based on her daughter’s complaint that a boy touched her bum while she was going towards the temple.
In the instant case 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.“
Background of the case
It was stated in court by the prosecution that the incident happened when the victim and her friend were walking towards the temple when a boy wearing black t-shirt, standing with a group of 4 boys advanced towards her and touched her private part. On this, all the boys started laughing and the victim rushed back to her home.
On reaching home, it was claimed that the victim (a 10-year old girl then) narrated the incident to her mother, who in turn called the victim’s father and told him that somebody had teased his daughter.
On this, the father reached home and took the victim to the spot where she identified the boy wearing black T-shirt.
Subsequently an FIR was lodged for commission of offences punishable under:
- Sections 354 (Assault or criminal force to woman with intent to outrage her modesty)
- 354A (sexual harassment) of IPC
- Section 10 (sexual assault) of the POCSO Act
The 22 -year old accused was apprehended the next day, allegedly wearing the same black T-shirt.
Contentions by Defence
The defence while denying all allegations claimed that the accused had been falsely implicated in the case and raised the following issues:
- 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”.
What the court held
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 regard, the Court read the definition of ‘Sexual assault’ under Section 7 of the POCSO Act.
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.“
Referring to the case of Kanwarpal Singh Gill (also called the 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.
Applying the same principle in the instant case, the Bench noted,
“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.“
The accused was thus 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.
Read Judgement here: