The said case was brought in the Calcutta High Court by the appellant/accused challenging his conviction under ‘Aggravated Sexual Assault’ of the Protection of Children from Sexual Offences Act (POCSO Act) 2012. Justice Bibek Chaudhary dismissed the said appeal of the accused and upheld the conviction of the trial court.
On her way to the house of her uncle, the accused forcibly took her, behind the latrine situated beside the house of a neighbor and pulled down her pant. The accused then opened his pant, touched the breast of the daughter of the defacto complainant, and also touched her private part with a finger. When he tried to commit rape upon her, the said minor girl cried out attracting local villagers. The villagers apprehended the accused in such a condition and manhandled him. Then he was sent to Saktinagar Hospital for medical treatment.
The appellant faced conviction under the charge of Section 10 of the POCSO Act and was sentenced to suffer rigorous imprisonment for six years with a fine of Rs.20,000/-, in default rigorous imprisonment for six months by the Trial court.
HIGH COURT OBSERVATIONS
The Court observed that during the session trial, the trial judge had found that the accused did not commit any offense of penetrative sexual assault and hence he had held that the accused is liable to be convicted for the charge of aggravated sexual assault within the meaning of Section 9(m) of the POCSO Act.
Further explaining about ‘any other act’ of sexual assault under Section 7 POCSO Act, the Court held, “The words ‘any other act’ encompasses with itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of “Ejusdem-Generis”. The act should be of the same nature or close to that.”
Opining that the sexual intent of the victim has been proved beyond any shadow of a doubt, the Court added, “The surrounding circumstance like the accused had taken the victim to the house of PW3 when she was not present, pulling down her pant, making her naked amply prove culpable mental state of the accused and in such a case, the court is entitled to raise statutory presumption about the culpable mental state of the accused as permitted under Section 30 of the POCSO Act. The said presumption has not been rebutted by the accused by proving that he has no such mental state. Therefore, the sexual intent of the accused is established beyond any shadow of a doubt.”
The High Court dismissed the Appeal.
Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna