Meghalaya High Court: W. Diengdoh, J. allowed a petition which was filed with a prayer to set aside and quash the criminal proceedings against the petitioner whereby, charges were framed against the petitioner in a Special (POCSO) Case.
The FIR alleged that the minor, nine years old, while she was playing near her house, some persons were playing cards and one of them asked her for a glass of water and at that time, he grabbed her hand, but the said minor daughter managed to run away. The Investigating Officer followed due procedure and after examination of witnesses and recording of relevant statements, filed the final report under Section 173 Cr.P.C indicating a finding of a prima facie case under Section 9(m)/10 POCSO Act against the petitioner herein. Special Judge (POCSO) on consideration of the charges after hearing the parties has found it fit frame charges against the petitioner herein under Sections 354/354A IPC and under Sections 7/9(m)/10 of the POCSO Act and has also directed that trial shall proceed against the petitioner herein.
The Court herein had to decide whether the alleged act of the petitioner against the alleged victim girl would attract the provision of Section 7 of the POCSO Act. The Court in order to elaborate on the meaning and purpose of the term ‘sexual assault’ vis-à-vis ‘sexual intent’ reiterated what Supreme Court had said in the case of Attorney General of India v. Satish, 2021 SCC Online SC 1076:
“72. A close analysis of Section 7 reveals that it is broadly divided into two limbs. Sexual assault, under the first limb is defined as the touching by a person – with sexual intent – of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender). In the second limb, sexual assault is the doing of “any other act with sexual intent which involves physical contact without penetration”.
In the present case the prosecution’s case is that because of the fact that the petitioner/accused had held the hands of the alleged victim girl and commented that she has beautiful hands, therefore he is said to have committed an act of sexual assault on a girl who is below 12 years old and as such has committed an offence under Section 9(m) of the POCSO Act. In this regard the Court noted that it is apparent that the place of occurrence is a public place with a number of people present and the alleged incident happened in broad daylight. The fact that the petitioner had held and commented on the hands of the alleged victim girl which contact is probably of a few seconds, the same cannot be read to imply that there is sexual intent on the part of the petitioner. At best, a non-sexual purpose of the contact can be presumed.
The Court relied on the decision of the Bombay High Court in Bandu Vitthalrao Borwar v. State of Maharashtra, 2016 SCC OnLine Bom 16128 wherein it was opined that,
“It is obvious that the intent, which is nothing but the state of mind, must be to establish some sort of physical contact or must be related to or associated with sex or indicative of involvement of sex in the relationship, if it is to be considered as sexual, I have already stated that the utterance indicating an expectation of a person that the other person should love him would not by itself amount to sexual intent as contemplated by the legislature”.
The appellant was consequently acquitted of all charges against him.
The Court thus opined that action of the petitioner in holding the hands of the alleged victim girl and saying that her hands are beautiful would not in any way amount to sexual intent and thereby, would not be considered an act of sexual assault. The petition was allowed and a Special (POCSO) Case against the petitioner was quashed.[Mohammad Saimullah v. State of Meghalaya, 2022 SCC OnLine Megh 201, decided on 26-05-2022]
For the Petitioner/Appellant(s): Mr S.C. Chakrawarthy. Sr. Adv. with Ms A. Barua
For the Respondent(s): Mr B. Bhattacharjee, AAG with Ms R. Colney