Dragging scarf, pulling hand not sexual assault, sexual harassment under POCSO Act: Calcutta High Court

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The Calcutta High Court recently held that an act of dragging a minor girl’s scarf, pulling her hand and proposing marriage does not come within the purview of sexual assault or sexual harassment under the Protection of Children from Sexual Offences (POCSO) Act [Nurai Sk. @ Nurul Sk. v. State of West Bengal].

Single-judge Justice Bibek Chaudhuri held that even assuming that the accused committed the alleged acts of dragging the scarf and pulling the hand of the victim and proposed marriage, such acts do not come within the definition of either sexual assault under Section 7 of POCSO or sexual harassment under Section 11 of POCSO.

At best, the accused can be held liable only for offences under Section 354A (sexual harassment) read with Section 506 (criminal intimidation) of the Indian Penal Code (IPC), the Court ruled.

The Court was hearing an appeal against an order of the trial court convicting the appellant for offences under Sections 8 (sexual assault of a minor) and 12 (Sexual harassment) of the POCSO Act and under Sections 354 (outrage woman’s modesty), 354A (2) (sexual harassment), 506 (criminal intimidation) of the IPC.

As per the prosecution, the victim was returning from school on 24 August 2017 when the accused dragged her orna (scarf) and proposed marriage. He also allegedly threatened an acid attack if she refused the proposal.

The trial court opined that the act of dragging the orna of the victim girl and insisting marriage was done with a sexual intent to outrage her modesty. Therefore, held that he had committed sexual assault and sexual harassment under POCSO.

On appeal, the High Court before going into the merits of the matter, discussed the judgment of the Supreme Court in State of Rajasthan vs. Om Prakash in which it was stated that it is necessary for courts to have a sensitive approach when dealing with cases of child rape since the effect of such a crime on the mind of the child is likely to be lifelong.

At the same time, this Court pointed out that administration of justice is not “one way traffic” and criminal justice must be imparted on the basis of the case and counter case based on facts and evidence, both oral and documentary.

Moving to the merits of the case, the Court adverted to the fact that there were irregularities in the victim’s statement and she had wrongly asserted the date and time of the incident while under oath. She had deposed that the incident took place on August 27 at 10:30 AM as opposed to August 24 at 4:10 PM.

Although this irregularity was rectified when the victim was made to depose again, the Court remarked that the deviation created doubt and the Court had reason to hold that no such incident occurred.

Therefore, the prosecution’s story has to be considered with a pinch of salt, the Court said.

“In a criminal trial date of occurrence, time of occurrence and place of occurrence are the most vital pieces of evidence which the prosecution is bound to prove beyond any shadow of doubt. If there is a deviation of the above-mentioned three facts, the entire case remains doubtful because the Court is every reason to hold that no such incident took place at the given time in the given manner at the given place and the accused is entitled to get benefit of doubt,” the judgment said.

Additionally, the statement of the victim’s uncle, the complainant, in the First Information Report (FIR) was considered. He had stated that accused dragged the hand of the victim. The allegation that the accused pulled her hand was introduced by the victim in her statement under Section 164 of the Criminal Procedure Code.

The Court, however, observed that a statement under Section 164 was not a substantive piece of evidence and can only be used for corroboration or contradiction.

“Such statement under Section 164 of the Code of Criminal Procedure should not be taken into consideration where the victim tried to exaggerate the incident.”

Importantly, the Court held that even if the allegations were true, they will not constitute an offence under the POCSO Act, the Court said.

Thus after considering the circumstances and provisions of the Indian Penal Code and POCSO Act, Justice Chaudhuri concluded that at best, the accused could be held liable under Section 354A read with Section 506 of the Indian Penal Code.

Resultantly, the appellant was acquitted of offences under Sections 354, 354B and 509 of the Indian Penal Code as well as Sections 8 and 12 of the POCSO Act.

For the offences under Sections 354A(1)(ii) and Section 506 of the Indian Penal Code, the conviction was affirmed.

The Court directed that if he had served his sentence for the convicted offences, he be released from the correction home.

Advocates Navanil De, Ayantika Roy and Subhrajit Dey appeared for the appellant. The Respondents were represented by Advocates Narayan Prasad Agarwala and Pratick Bose.

Read Judgment here

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