Bombay High Court
Bandu Vithalrao Borwar vs State Of Maharashtra, Through ... on 17 October, 2016
Bench: S.B. Shukre
J-apeal50.16.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.50 OF 2016
Bandu Vitthalrao Borwar,
Age 19 years,
Occupation : Fisherman,
R/o. Savitribai Fule Nagar,
Morshi, Tq. Morshi, District Amravati. : APPELLANT.
...VERSUS...
State of Maharashtra,
Through Police Station Officer,
Morshi, District Amravati : RESPONDENT
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Shri C.A. Babrekar, Advocate for the Appellant.
Shri C.A. Lokhande, Additional Public Prosecutor for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 17
OCTOBER, 2016.
ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order
dated 23.3.2015, passed by the Additional Sessions Judge, Amravati, in
Sessions Trial No.270/2013, thereby convicting the appellant of the
offence punishable under Section 12 of the Protection of Children from
Sexual Offences, Act, 2012 (in short, "POCSO Act") and Section 354-D of
the Indian Penal code (in short, "I.P.C.").
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2. The facts giving rise to this appeal are stated briefly as
under :
The victim of the crime was a minor girl when the incident
occurred. The incident occurred on 30.8.2013 at about 10.30 a.m. when
the victim was proceeding to her school. It is alleged that at that time,
she was accosted by the appellant by stopping her and the appellant put
a question to her as to why did she not love the appellant The victim girl
gave a negative reply and thereupon the appellant, getting angry,
slapped the victim in her face. The victim started weeping and came
back home. She narrated the incident to her mother, who in turn
immediately reported the incident to Police Station Morshi, District
Amravati. The statement of the victim was recorded. The F.I.R. was
registered for the offences punishable under Sections 354-D, 504, 506
and 323 of the Indian Penal Code and under Section 12 of the POCSO
Act. The investigation was carried out. A charge-sheet was filed. The
appellant was prosecuted for the offences punishable under Sections
354-D, 504 and 506 of the Indian Penal Code and Section 12 of the
POCSO Act. On merits of the case, the learned Additional Sessions Judge
found that the offences punishable under Sections 504 and 506 of the
Indian Penal Code were not made out and, therefore, he acquitted the
appellant of these offences. But, he found that the offences punishable
under Section 354-D of the I.P.C. and Section 12 of the POCSO Act were
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made out and accordingly convicted the appellant for both of these
offences. A common sentence was imposed for both these offences, it
was of rigorous imprisonment for two years together with fine amount of
Rs.1,000/-, with default sentence of one month of simple imprisonment,
by the judgment and order passed on 23.3.2015. It is these judgment
and order, which are under challenge in the present appeal.
3. Shri Babrekar, learned counsel for the appellant submits that
even the offences punishable under Section 354-D of the I.P.C. and
Section 12 of the POCSO Act are not made out as in this case, the
incident comprises only one instance of the appellant allegedly asking
the victim as to why did she not love him and that, whatever utterances
were made, were not with any sexual intent, as required under Section
11 of the POCSO Act.
4. Learned A.P.P. for the State, supporting the judgment
submits that there is no scope for making any interference with the
impugned judgment and order and the evidence is clear.
5. On going through the impugned judgment and order as well
as record of the case, I find myself in disagreement with the learned
A.P.P. and in agreement with the learned counsel for the appellant.
6. In this case, admittedly, the basis of the offences alleged
against the appellant is the sole incident that took place on 30 th August,
2013 at about 10.30 a.m. So far as taking place of this incident is
J-apeal50.16.odt 4/11
concerned, the evidence of prosecution witnesses, particularly, the
evidence of PW 5, the victim girl, is of trustworthy nature. I do not see
any infirmity or discrepancy or inconsistency in the entire prosecution
evidence so far as happening of the incident is concerned. But, the
question is - whether this sole incident by itself would amount to
commission of an offence punishable under Section 354-D of the I.P.C. as
well as Section 12 of the POCSO Act and the answer, to my mind, would
be in the negative.
7.
Section 354-D defines the offence of "stalking" and it lays
down that in order that this offence is committed, there must be
following of a woman and contacting her or attempting to contact a
woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such a woman or there should be monitoring
of the use by a woman of the internet, email or any other form of
electronic communication. In the instant case, we are not concerned
with that part of the offence of stalking which relates to monitoring the
activity of a woman on the internet, email etc. and we are only
concerned with the other part of the offence as indicated by the
allegation that the appellant followed the victim and contacted her. The
allegation made against the appellant is not that he followed and
contacted the victim repeatedly, despite a clear indication of disinterest
shown by her. The allegation is that he contacted the victim only once
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and when she refused to go ahead with any kind of relationship with the
appellant, the appellant slapped her in the face. So, this incident, which
was the sole incident, would not constitute the offence of stalking, as
defined under Section 354-D(1). It appears that the learned Additional
Sessions Judge has not at all considered the essential ingredients of the
offence of stalking, which must be fulfilled in order to establish the
offence of stalking. The learned Additional Sessions Judge has
committed an illegality in recording a positive finding in this regard.
8.
So far as offence punishable under Section 12 of the POCFSO
Act is concerned, the offence would be complete if the prosecution
succeeds in establishing the essential ingredients of the expression
"sexual harassment", as clarified by Section 11 of the Act. Section 11
clarifies or defines what is a sexual harassment. It has, in all, six clauses,
dealing with various acts declared to be the acts of sexual harassment.
In the instant case, having regard to the nature of allegations made
against the appellant, we would be concerned with those acts, which fall
under clause (1) of Section 11, which reads thus :
"11. Sexual harassment.- A person is said to commit sexual
harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture
or exhibits any object or part of body with the intention
that such word or sound shall be heard, or such gesture or
object or part of body shall be seen by the child; or
J-apeal50.16.odt 6/11
(ii).......
(iii)......
(iv)......
(v).......
(vi)......
Explanation.- Any question which involves "sexual intent"
shall be a question of fact.
9. A bare perusal of the above referred clause of Section 11,
together with the explanation, would indicate that it is necessary that the
utterances are made by the accused with "sexual intent". The expression
"sexual intent" has been made a question of fact by the legislature and it
would show that the legislature has not confined the meaning of the
expression sexual intent, in any predetermined format or structure and
has left it to be determined by the Court in the light of the facts and
circumstances of each case. But, even for such a determination, plain
and ordinary meaning of these two words would have to be considered
so that the real intention of the offender can be ascertained from the
facts and attendant circumstances.
10. In the instant case, the victim, PW 5, has deposed that on 30 th
August, 2013, in the morning, this appellant asked her as to why did she
not love him and when she declined, the appellant slapped her in the
face. Now, in order to understand the intention of the appellant behind
such utterances, we would have to look into the entire evidence of the
prosecution. After all intention of a person is his state of mind and has to
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be discerned from the surrounding facts and circumstances. If one
cannot, as a human being, physically enter into a mind of another to read
and see what is being cooked there, one can surely know it by evaluating
all that which is perceivable or felt by human senses such as words,
body-language, gestures, reactions and everything that is a physical
manifestation of working of human mind. If somebody says that he is in
love with another person or asks another person as to why the other
person does not love him, such expression of a feeling or expectation of a
particular feeling from another person would not by itself amount to an
intent exhibiting some sort of sexuality. Such utterance, in a given case,
can have an overtone of sexuality as well provided, it is made in a
manner, as illustrated by eye expressions, gestures, voice modulations
and the like, steeped in sexuality. Question is what constitutes such
sexuality or sexual intent and what is not. Perhaps understanding the
generally accepted meaning of the words "sexual" and "intent" will help
us in finding out an answer. The words 'sexual' and 'intent' have not
been defined anywhere in the Act and, therefore, it would be useful to
understand their meaning as are commonly understood in english
language. For this purpose, a reference to the English dictionary would
be useful. In Webster's New Explorer Encyclopedic Dictionary, 2006 th
edition, the words 'sexual' and 'intent' have been defined on Page
Nos.1683 and 959 respectively as under :
J-apeal50.16.odt 8/11
Sexual :
"1 : of, relating to, or associated with sex or the sexes
(sexual differentiation) (sexual conflict)
2: having or involving sex (sexual reproduction)"
Intent :
"1a : the act or fact of intending : PURPOSE; especially : the
design or purpose to commit a wrongful or criminal act
(admitted wounding him with intent).
b : the state of mind with which an act is done : VOLITION.
2 : a usually clearly formulated or planned intention : AIM
3a :MEANING, SIGNIFICANCE
b : CONNOTATION"
11. It is obvious that the intent, which is nothing but a 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. There should be something more which
must suggest that the real intention is to drag in the angle of sex, if the
words uttered are to be taken as conveying sexual intent. If we consider
the other evidence of the prosecution in order to ascertain the state of
mind of the appellant, we would find that there is not a single
circumstance, which would indicate that the appellant's real intention
was to establish a sexual contact with the appellant then or in near
J-apeal50.16.odt 9/11
future. No evidence has been brought on record throwing any light upon
the eye expressions, voice modulations, body language etc. of the
appellant. Besides, the utterances in question have not been made
repeatedly but only singularly. Such being the nature of evidence, I do
not think that the utterances made by the appellant, in the presence of
the victim girl and that were heard by her as well as her friend PW 6
Manisha in this case, indicated any sexual intent on the part of the
appellant. If this is so, it would have to be said that even the offence
punishable under Section 12 of the POCSO Act, which is an offence of
sexual harassment, has not been proved by the prosecution beyond
reasonable doubt. The learned Additional Sessions Judge has committed
an illegality in not considering the true import of the offence of sexual
harassment, as defined in Section 11 of the POCSO Act.
12. In the result, the appeal deserves to be allowed by quashing
the impugned judgment and order.
13. The appeal is allowed.
14. The impugned judgment and order dated 23rd March, 2015,
passed by the Additional Sessions Judge, Amravati, are hereby quashed
and set aside.
15. The appellant is acquitted of the offences punishable under
Section 12 of the Protection of Children from Sexual Offences, Act, 2012
and Section 354-D of the Indian Penal Code.
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16. Fine amount, if paid, be refunded to the appellant.
17. His bail bond stands discharged.
JUDGE
okMksns
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Uploaded on : 24.10.2016.
