A Special Protection of Children from Sexual Offences (POCSO) Court
in Bombay Held that touching of the ‘backside’ or posterior of a person is also to be considered sexual assault under the provisions of the section 10 of the Protection of Children from Sexual Offences (POCSO)
Act, 2012 and Section 354 of the Indian Penal Code 1869
The case is to do with a 22 yr old man who was accused of ‘touching’ a minor girl thus being tried for the gestures with sexual intent to outrage the child’s modesty. The case deals with the alleged abuse of child that took place when a girl was walking towards a temple and a group of four boys approached her and one of the guys, wearing a black T-shirt touched her private part. The term “private part” as laid down in the provisions of law in India is to be observed and interpreted in a way that the society sees it, the court said. Sexual Assault was defined under section 7 of the POCSO Act
, the court commented, “the touching of bum of the girl obviously cannot t said to be without sexual intent”.
The accused denied the happening of any such incident further putting forth the argument that there was no record of any eye-witness or any statement from the other three boys present from the scenario that the victim described. The defendant argued, someone’s bum is not a private part as the victim claims, also challenging the FIR that stated ‘teasing’ and not ‘touching’ and there is a massive difference between the two. The Court responded to such submissions saying touching of the posterior is not mere teasing-
"The victim in her language said to her parents and before the police that accused had touched her private part. At the relevant time, she was hardly 10 years old. So she in her language expressed her ordeal. So there cannot be any confusion that she was not only teased but had been touched inappropriately by the accused." Rejecting the arguments of the accused, the court declared -
“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” Section 7, POCSO Act states:
"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
Referring to section 7, the accused person’s action “obviously had sexual intent” thus falling under the description of sexual assault. The Court then added, “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.” The Bombay Bench makes reference to the famous butt-slapping case of 1988 where the High Court of Punjab and Haryana convicted the accused under Section 354 (outraging the modesty of a woman) and Section 509 (word, gesture or act intended to insult a lady) of the IPC for slapping a woman’s posterior. The Supreme Court later confirmed this conviction as well. With the matter at hand, the bench of the Bombay POCSO Court said,
"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."
With regard to the argument of not having any eye-witnesses on record, the Court said, that -
“Very few people like to involve in such incident even though incident has been seen by them. So merely for the reason that there are no eye witnesses to the incident and that the friend who was with the prosecutrix has not been examined, cannot be the reason to discard and disregard the testimony of the victim girl."
Further the bench goes on to criticizing the police on their investigation on not even attempting to find the black T-shirt to confirm the identity of the accused. The Court further added;
“Victim has pointed the particular boy to her father wearing black T-shirt. It is a matter of record that the police didn't recover the said black T-shirt from the accused to confirm his identity. To me, it is the set back in the investigation of the police and innocent victim is not supposed to pay its cost.”