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Synopsis

The Calcutta High Court recently set aside the conviction order of the Special Court - Cum – Additional Sessions Judge Hooghly under the POCSO act on the grounds that the prosecution had failed to prove the accused's sexual intent as per Section 11 of the Act.

The Single Judge Bench of Justice Tirthankar Ghosh observed that the victim’s parents exaggerated their versions to attract the provisions of the POCSO Act.

“Victim’s father in the complaint alleged that accused tried to cover her face with an ill motive and subsequently while deposing before the Court he narrated in respect of pulling down of the wearing pant and touching the sensitive parts of the body of the victim,” the court noted.

The complaint was filed by the victim’s father. He stated that on June 6, 2016, his 13-year-old daughter was returning home when the accused stood in front of her, pulled her down from her bicycle, and attempted to cover her face with an ill-motive.

On the basis of the complaint, a criminal case was filed against the appellant accused under Sections 8 (Punishment for sexual assault), 12 (Punishment for sexual harassment) of the POCSO Act, and 354 (Assault of criminal force on a woman with intent to insult her modesty) of the IPC.

On July 25, 2022, the accused was held guilty under Section 8 of the POCSO Act and sentenced to imprisonment for three years and a fine of Rs.5, 000/- by the trial court.

The accused aggrieved by the order passed by the trial court filed an appeal before the present High Court.

The counsel appearing for the appellant before the present bench stated that the evidence presented by the prosecution witnesses was contradictory and contained exaggerations that did not support the victim's claims.

Further, it was also stated that the victim's evidence contained no gestures, overacts, or overtones that would bring the appellant-accused's act within the idea of 'sexual intent,' for implicating him under the relevant provisions of the POCSO Act or Section 354 of the IPC.

The complainant’s counsel argued that the provision of Section 7 of the POCSO Act is satisfied to make out an offence in respect of the act complained of.

 Counsel highlighted the second part of Section 7 of the POCSO Act which defines ‘sexual act’ and submits that in this case the phrase “does any other act with sexual intent which involves physical contact without penetration” is satisfied.

The court noted that the victim in her statement under Section 164 CrPC mentioned she was riding a bicycle home from her tuition when the accused was standing on the road. She also stated that she couldn't recall the identity of the accused, however, he forced her off her bicycle and put his hands on her face and neck.

It was also noted that there was no accusation in the victim's (PW 1) statement referring to any physical contact or touch on any of her intimate parts of her body, attempting to disrobe her, or pulling her towards the bush with an ill-motive.

Further, the court noted the statement of her mother who stated before the court that when the victim was returning from tuition on a cycle the accused forced her to fall from a cycle, and dragged her to the roadside by pressing his hand putting a hand on her breast and vagina.

The court after hearing all the arguments and statements held that the assessment of the evidence victim’s parents exaggerated their versions so that the provisions of the POCSO Act can be attracted.

Accordingly, the court acquitted the appellant and set aside the earlier conviction order.

Case Title: M vs. The State of West Bengal & Anr

Statute: Protection of Children from Sexual Offences