Man putting his hand on girl’s shoulder, pulling her clothes proof of sexual intent in POCSO case: Madhya Pradesh High Court

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A man pulling the clothes of a girl and putting his hand on her shoulder show his sexual intent, the Madhya Pradesh High Court recently said while confirming the conviction of a person under the Protection of Children from Sexual Offences Act (POCSO Act) [Nageshwar v State].

Single-judge Justice Prem Narayan Singh said that as per law, any prosecution for any offence under the POCSO Act requires a culpable mental stage on the part of the accused and the same shall be presumed by the special court in such type of offences.

“So far as the demurrer of sexual intent is concerned, at the time of incident, the appellant was 22 years old person. He has pulled clothes of prosecutrix and put his hand on her shoulder. This conduct clearly signified the sexual instinct of the appellant,” the Court held.

Hence, it confirmed the conviction of the appellant-accused under Section 354 (outraging modesty) of the Indian Penal Code (IPC) and Section 7/8 of POCSO Act.

The Court also upheld the sentence of 3 years’ imprisonment along with a fine of ₹4,000.

It was the prosecution case that when the victim, a 9th-grade student, was returning from her relative’s house, the appellant-accused grabbed her hand with a malicious intent and pulled her clothes. When she raised an alarm, her uncle Manish arrived and appellant then fled the scene after threatening her.

Following the completion of the investigation, a charge sheet was filed, and after the trial concluded, the court found the appellant guilty. The trial court imposed a sentence of 3 years of rigorous imprisonment along with a fine of ₹4,000 for the offence under the POCSO Act.

The appellant moved the High Court challenging the same.

The counsel for accused argued that the age of the prosecutrix was not properly examined and there were no sexual assault on the appellant’s part.

After a comprehensive analysis of all the available evidence, the Court said that the victim’s statement was corroborated by the statement of a witness, one Manish. It was also consistent with the details provided in the first information report (FIR), the Court added.

Additionally, the Court took into account the fact that during the medical examination of the victim, a medical officer had identified an abrasion on the upper part of the prosecutrix’s left hand.

In relation to the question of whether the prosecutrix fell within the definition of a ‘child’ below the age of 18 years, the Court considered the scholar register and determined that at the time of the incident, the she was less than 15 years of age.

Further, while acknowledging minor contradictions in the testimonies of the prosecutrix and other witnesses, the Court emphasized that such discrepancies will not diminish the credibility of their accounts.

“Virtually, the testimony of prosecutrix should be regarded as an injured witness of the case and it is well settled that criminal jurisprudence attaches great weightage to the evidence of a person injured in the incidence. Such a testimony comes with an in-built guarantee of truth, especially when it is a case of molestation or sexual assault. Such type of witness cannot spare the actual culprit in order to foist an innocent person,” the Court held.

In view of the above, the Court upheld that the conviction and sentence of the appellant.

Advocate Salil Ekadi represented the appellant-accused.

Advocate Anendr Singh Parihar represented the State.

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