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Synopsis

In a significant ruling, the Meghalaya High Court has upheld the view that acts of hugging or embracing cannot be considered expressions of love and friendship if coupled with sexual intent. The court, interpreting physical gestures in the case involving allegations of sexual intent, ruled in favour of the contention that actions such as holding the hands of the survivor, attempting to forcibly kiss her, and engaging in unwanted physical contact clearly demonstrate the presence of sexual intent on the part of the accused.

The court made the observation while hearing an appeal challenging the judgment of conviction and sentence passed by the Special Judge (POCSO),  which sentenced the accused to three years and six months of imprisonment, along with a fine of Rs. 2,00,000 under under Section 7/8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), dealing with sexual assault and its punishment, respectively.

The case stemmed from a written complaint lodged by the father of the survivor, a girl aged 17 years, alleging molestation by the accused/ appellant on March 4, 2019, near Presbyterian Secondary School in Ri Bhoi District.

The counsel for the accused argued that hugging or embracing should not be deemed criminal as they are merely expressions of love and friendship, rather than indicative of any malicious intent. It was also asserted that the survivor's testimony does not explicitly state that she was inappropriately touched by the appellant, casting doubt on the severity of the alleged offence.

The counsel pointed out purported inconsistencies between the survivor's statement recorded under Section 164 of the Cr.P.C and her testimony during the trial, suggesting a lack of coherence in the survivor's narrative.

Moreover, the familiarity between the appellant and the survivor was highlighted, positing that the alleged incident was merely a manifestation of their friendly relationship with absence of any indication of sexual intent on the part of the accused.

It was also contended that the prosecution has failed to establish the foundational elements necessary to invoke the provisions of Section 7/8 of the POCSO Act. Additionally, it was argued that the presumption outlined in Section 29 of the POCSO Act cannot be inferred solely from mere allegations.

In contrast, Mr. K. Khan, the learned Public Prosecutor (PP), firmly stood behind the conviction and sentence delivered by the Trial Court. He argued that the testimony provided by Prosecution the survivor found strong corroboration in the accounts of eyewitnesses. It was asserted that the collective evidence painted a clear picture of sexual assault perpetrated by the appellant, aligning with the legal definition outlined in Section 7 of the POCSO Act.

During her deposition before the Trial Court, the survivor, provided a detailed account of the events that transpired on March 4, 2019. She recounted that during recess, while she was seated with her school friends and enjoying chips, the accused approached her and forcibly attempted to kiss her, while also making unwanted physical advances by holding her hand and other body parts. In her distress, she screamed and struggled to break free from the accused's grasp. Upon hearing her cries, her friends rushed to her aid, prompting the appellant to flee the scene. Subsequently, the survivor and her friends reported the incident to their class teacher, who in turn informed the school Principal and contacted the police, leading to the arrest of the accused.

Following the incident, the survivor underwent a medical examination. Additionally, her statement was formally recorded under Section 164 of the Criminal Procedure Code (Cr.P.C).

However, during cross-examination, the survivor acknowledged that she was acquainted with the appellant, but vehemently denied any suggestion that the complaint against him stemmed from a misunderstanding. Furthermore, she refuted claims that she had been communicating with the appellant via Facebook.

The PP further, relying on the testimonies of witnesses, stated that the accused did not dispute his presence at the scene of the incident during cross-examination. Instead, he acknowledged his presence but attempted to justify his actions by portraying the incident as a friendly interaction between two close acquaintances.

“The contention of the appellant that the entire incident was an expression of sign of love and friendship between the survivor and the appellant is, thus, totally unsupported by evidence and cannot be accepted,” the PP argued.

The court, presided over by Justice B. Bhattacharjee, held that the prosecution has successfully established foundational facts in the present case. Moreover, it is evident from the records that the Trial Court did not base its judgment solely on the survivor's statement under Section 164 of the Cr.P.C. Instead, the court carefully considered the testimonies of all witnesses, including the survivor and the eyewitnesses. Therefore, the Trial Court's decision is consistent with established legal principles, and there is no contradiction with the relevant legal precedents.

The court further observed that, “The appellant has not made any allegation of hostility or vindictiveness on the part of the survivor in making the accusation against him in order to render the statement of the survivor doubtful.” The overall circumstances of the case do not suggest any motive for the survivor to falsely implicate the appellant.

“Therefore, there should not be any hesitation on the part of the Court in accepting her evidence adduced during the course of trial,”  the court noted.

The Court, in furtherance, upheld the conviction under Section 7/8 of the POCSO Act.

However, considering that the appellant was approximately 19 years old at the time of the incident, lacked any prior criminal record, and was a student, the period of imprisonment was reduced from 3 years 6 months to 3 years.

Similarly, the fine imposed was reduced from Rs. 2,00,000/- to Rs. 20,000/-. In default of payment, the appellant was to undergo an additional 1 month's imprisonment. Other stipulations made by the Trial Court in the sentence order remained unchanged.

 

Cause Title: Wallamhok Kshiar vs State of Meghalaya [Crl. A. No. 20 of 2023]