Calcutta High Court | While deciding a case related to S. 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Tirthankar Ghosh*, J., observed that the victim’s parents exaggerated their versions to attract the provisions of the POCSO Act and set aside the conviction order of the Special Court on the grounds that the prosecution has failed to prove accused’s sexual intent as per S. 11 of the POCSO Act.
In the instant matter, a complaint was lodge by the complainant-father of alleged victim (13-year-old daughter) against accused-appellant, Gobinda Bag (Buro) tried to bring the victim with him with an ill-motive by covering her face when she was returning to her home. Some villagers noticed the accused when he fled away from the scene. A criminal case was filed against the appellant accused under Ss. 8 and 12 of the POCSO Act and S. 354 of the IPC. The Special Court – Additional Sessions Judge vide order dated 25-07-2022, held the appellant guilty under S. 8 of the POCSO Act and him to suffer Simple Imprisonment for three years and fine of Rs. 5,000/- in default to undergo additional Simple Imprisonment for one month. Aggrieved by the judgment and order of conviction and sentence passed by the Special Court, the appellant preferred an appeal before this Court challenging the same.
The accused contended that the evidence presented by the prosecution witnesses did not support the victim’s claims as the same are contradictory and contained exaggerations. The accused further contended that the victim’s evidence contains no gestures, overacts, or overtones that would implicate the accused for having ‘sexual intent’ towards the victim and thereby attract the relevant provisions of the POCSO Act or S. 354 of the IPC. On the other hand, the complainant contended that the provision of S. 7 of the POCSO Act which provides “does any other act with sexual intent which involves physical contact without penetration” is satisfied to make out an offence against the accused.
The Court observed that there is no accusation in the victim’s statement under S. 164 of the CrPC regarding any physical contact or touch on any of her intimate parts of her body, or attempting to disrobe her, or pulling her towards the bush with an ill-motive.
The Court observed that the victim’s parents exaggerated their versions to attract the provisions of the POCSO Act. The court stated that “The prosecution evidence on being scrutinised should inspire the confidence of the Court regarding the factum of sexual intent being involved which is to be inferred with reference to the circumstances under which touch or physical contact occurs.”
The Court held that the prosecution has failed to prove accused’s sexual intent as per S. 11 of the POCSO Act and set aside the conviction order of the Special Court against the accused.
“I am unable to satisfy myself as to whether any case is made out from the touch or physical contact which would attract the basis of “sexual intent” as is referred to in the explanation to Section 11 of the POCSO Act”
[Gobinda Bag v. State of W.B., 2023 SCC OnLine Cal 1040, order dated 04-05-2023]
*Judgment by Justice Tirthankar Ghosh
Advocates who appeared in this case :
Mr. Jayanta Narayan Chatterjee, Ms. Moumita Pandit, Ms. Nandini Chatterjee, Mr. Supreem Naskar, Ms. Jayashree Patra, Ms. Sreeparna Ghosh, Ms. Ritushree Banerjee, Ms. Pritha Sinha and Ms. Dipanwita Das, Counsel for the Appellant;
Mr. Saswata Gopal Mukherjee (P.P.), Mr. Sandip Chakraborty and Mr. Saryati Datta, Counsel for the Respondent/State;
Mr. Dipanjan Dutt, Counsel for the de facto complainant/victim.
