Madhya Pradesh High Court
Sonu @ Sameer Khan vs State Of Madhya Pradesh on 9 May, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 9 th OF MAY, 2024
CRIMINAL APPEAL No. 3370 of 2023
BETWEEN:-
SONU @ SAMEER KHAN S/O SHRI SAYEED KHAN, AGED
ABOUT 24 YEARS, OCCUPATION: UNEMPLOYED R/O
NEAR TANKI GWALTOLI, P.S. KOTWALI,
NARMADAPURAM, DISTT. NARMADAPURAM (M.P.)
.....APPELLANT
(BY SHRI SHEERSH AGRAWAL - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THR. P.S. KOTWALI
P.S. KOTWALI, DISTT. NARMADAPURAM (M.P.)
(MADHYA PRADESH)
2. VICTIM A D/O NOT MENTION THROUGH POLICE
STATION KOTWALI DISTRICT NARMADAPURAM
(MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. SHANTI TIWARI - PANEL LAWYER)
This appeal coming on for hearing this day, the court passed the
following:
ORDER
This appeal has been filed by the appellant under Section 374(2) of
the Cr.P.C. being aggrieved by judgment of conviction and order of sentence
dated 14.01.2023 passed by the Special Judge, POCSO Act, District
Narmadapuram, whereby the appellant has been convicted under Section
9(m)/10 of the POCSO Act and sentenced to undergo R.I. for 05 years with
fine of Rs.2000/-, with default stipulations.
2. Learned counsel for the appellant contends that in the present case the
trial Court without even appreciating the scope and ambit of statutory
provisions has convicted the appellant. It is contended by the counsel that as
per prosecution, when the prosecutrix was there at the place of incident the
present appellant came in the state of insobriety and caught hold of hand of the
prosecutrix and the said incident was witnessed by one vegetable vendor (PW-
05) and accordingly, the machinery of law was set in motion.
3. It is contended by the learned counsel for the appellant that the mother
of the prosecutrix (PW-02) as well as the vegetable vendor (PW-05) have
turned hostile and they have not supported the prosecution story. It is further
contended by the counsel that the trial Court prima facie while proceeding on
assumption that the present appellant made an attempt to pull the prosecutrix
towards himself concluded that it was a physical touch and advance involving
explicit sexual overture. It is contended by the counsel that the statement of the
prosecutrix recorded under Section 164 of CrPC as well as the statement of the
prosecutrix recorded before the trial Court under Section 164 of the CrPC as
well would reveal that the prosecutrix has nowhere stated that the present
appellant had pulled the prosecutrix towards himself, on the contrary, in the
statement recorded under Section 164 of CrPC, the prosecutrix said that the
present appellant had pulled her hand, tried to drag her and in her statement
recorded before the Court it has been stated in para 1, that the present appellant
held hand of the prosecutrix and attempted to take her along with him but did
not say anything.
4. Thus, it is contended by the learned counsel for the appellant that if
the testimony of the prosecutrix, PW-01, her mother, PW-02 and also Ex.P/3
are placed at juxtaposition, the same would reveal that the findings so arrived by
the trial Court in para 37 of the judgment, on the face of it, are unsustainable. It
is the further contention of the learned counsel that the trial Court has grossly
erred in convicting the appellant under Section 9(m) and 10 of the POCSO
Act.
5. Learned counsel for the appellant further submits that it was incumbent
upon the trial Court to appreciate para 1 of the testimony of PW-01, inasmuch
as as per the prosecutrix herself, the other bystanders had cautioned the
prosecutrix that the present appellant was in the state of intoxication. Thus, it is
the contention of the learned counsel that the impugned judgment of
conviction is unsustainable.
6. Learned counsel for the State has opposed the prayer and submitted
that the trial Court on proper analysis of the evidence adduced by the parties
has arrived at the conclusion and thereby has convicted the appellant. The
impugned judgment of conviction, in absence of any infirmity or perversity
does not warrant any interference in this appeal.
7. Heard the submissions and perused the records.
8. A perusal of the impugned judgment as well as the records reflect that
the proceedings were initiated on the complaint made by the mother of the
prosecutrix, which is contained in Ex.P/3. A perusal of the same reflects that it
was intimated to the police by the mother of the prosecutrix that her daughter
i.e. the prosecutrix was going to her "Nani" (grandmother) place, on the way
she was stopped by the present appellant, who held her hand and started pulling
her.
9. Thereafter, upon lodging of the FIR, the statement of the prosecutrix
under Section under Section 164 CrPC was recorded. In the aforesaid
statement the prosecutrix stated that the present appellant pulled her hand,
however her statement prima facie discloses that it was nowhere stated by the
prosecutrix that the present appellant made any attempt to pull the prosecutrix
towards him. Simultaneously, during the course of trial as well, the prosecutrix
in para 1 of her testimony though stated that the present appellant caught hold
of her hand, but it is nowhere stated that that the present appellant pulled the
prosecutrix towards him and thereby, such gesture was to advance sexual
assault.
10. A perusal of the judgment delivered by the trial Court, if scrutinized
carefully, the same would reflect that in para 37 as well as 43, the trial Court
proceeded on the assumption that the present appellant caught hold of hand of
the prosedcutrix and made an attempt to pull the prosecutrix towards himself.
Such findings, so arrived at by the trial Court do not find support from the
evidence available on record.
11. It is evident from perusal of the record that the mother of the
prosecutrix, PW-02 has turned hostile. Simultaneously, the vegetable vendor,
PW-05 also turned hostile. Neither PW-02 nor PW-5 has supported the
prosecution story. The prosecutrix also nowhere states in her testimony that
the present appellant had pulled her hand towards him. It is further evident
from the statement of the prosecutrix herself that the present applicant was in
the state of intoxication, which is evident from para 1 of her testimony. Thus, it
appears, that the trial Court without there being any evidence as regards sexual
assault, came to the contrary findings in para 37 as well as 43 of the judgement.
12. The testimony of the prosecutrix if perused from any angle, do not
suggest that the alleged act could have been brought within the definition of
'sexual assault'. It is further evident from para 1 of the testimony of the
prosecutrix that the present applicant did not speak anything and later on left her
hand when other people intervened.
13. To attract the provisions of sections 9 and 10 of POCSO Act, it is
incumbent upon the prosecution so as to establish that the accused is guilty of
sexual assault and physical touch was intentional, such act should be within the
definition of "sexual assault". In the present case, no such eventuality exists,
and there is complete failure on the part of the prosecution to establish that it
was a sexual assault within the meaning of Section 9(m) or Section 10 of the
POCSO Act. The act in question, in view of the available material, cannot be
brought within the ambit of 'sexual assault' and, therefore, this Court is of the
considered view, that the trial Court committed error while while convicting the
appellant.
14. At this juncture it is useful to refer to Section 7 of the POCSO Act
which defines 'sexual assault' which is reproduced hereunder :
"7. Sexual assault. - 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."
[Emphasis supplied]
15. Section 9 (m) of the POCSO Act provides that, whoever commits
sexual assault on a child, below 12 years, is said to commit aggravated sexual
assault.
16. Recently, interpretation of Section 7 of the POCSO Act came up for
consideration before the Apex Court in the case of Attorney General for
India vs. Satish and another, (2022) 5 SCC 545 . The Apex Court while
dealing with the term "sexual assault" as well as "sexual intent" laid down in
paras 77 to 82 as under :
"77. 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".
78. The use of the expression "touch" appears to be common,
to the first and second parts, of the first limb. "Touch" says the
Cambridge Dictionary is "to put your hand or another part of your
body lightly onto and off something or someone."
79.Collins Dictionary likewise, states that:
"Your sense of touch is your ability to tell what something is
like when you feel it with your hands."
80. "Contact" on the other hand, which is used in the second
limb, has a wider connotation; it encompasses--but is not always
limited to--"touch". While it is not immediately apparent why the
term "physical contact" has been used in the second limb, its use in
conjunction with "any other act" (controlled by the overarching
expression "with sexual intent"), indicates that "physical contact"
means something which is of wider import than "touching". Viewed
so, physical contact without penetration, may not necessarily involve
touch. The "other act" involving "physical contact" may involve :
direct physical contact by the offender, with any other body part (not
mentioned in the first limb) of the victim; other acts, such as use of
an object by the offender, engaging physical contact with the victim;
or in the given circumstances of the case, even no contact by the
offender (the expression "any other act" is sufficiently wide to
connote, for instance, the victim being coerced to touch oneself).
81. Parliamentary intent and emphasis, however, is that the
offending behaviour (whether the touch or other act involving
physical contact), should be motivated with sexual intent. Parliament
moved beyond the four sexual body parts, and covered acts of a
general nature, which when done with sexual intent, are criminalised
by the second limb of Section 7. The specific mention of the four
body parts of the child in the first limb, and the use of the controlling
expression "sexual intent" mean that every touch of those four body
parts is prima facie suspect.
82. The circumstances in which touch or physical contact
occurs would be determinative of whether it is motivated by "sexual
intent". There could be a good explanation for such physical contact
which include the nature of the relationship between the child and the
offender, the length of the contact, its purposefulness; also, if there
was a legitimate non-sexual purpose for the contact. Also relevant is
where it takes place and the conduct of the offender before and after
such contact. In this regard, it would be useful to always keep in
mind that "sexual intent" is not defined, but fact-dependent--as the
Explanation to Section 11 specifies."
[Emphasis supplied]
17. The aforesaid discussion by the Apex Court as regards statutory
provisions reflect that the second limb of Section 7 of the POCSO Act deals
with an act which is committed with sexual intent which involves physical
contact without penetration. The facts of the case in the present case, do not
relate to first limb of section 7 and undisputedly relate to second limb of
Section 7 of the POCSO Act.
18. Thus, in the present case, sexual intent was required to be ascertained
before convicting the accused of the charges levelled against him. The facts of
the case clearly reveal that the incident had taken place 29-01-2021 at about
02:00 o'clock in the afternoon at public street and apart from the victim as well
as accused, there were other people present on the road. Undisputedly, there is
no allegation by the prosecution that the present appellant held hand of the
victim with sexual intent. It was the bounden duty of the prosecution to prove
beyond reasonable doubt, that the appellant had held hand of the prosecutrix
with sexual intent. The prosecutrix herself has said that except holding the hand
of the prosecutrix and trying to pull her, the appellant did not say anything and
later on, the other people also intervened.
19. The High Court of Meghalaya at Shillong in the case of Mohammad
Saimullah vs. State of Meghalaya and ors. (2022) 3 CriCC 593,
considered a case where the allegations were levelled regarding sexual assxault
with sexual intent at a public place at broad daylight. The High Court of
Meghalaya in para 18 held as under :
"18. In the light of the view expressed at paragraph 77
(supra), this Court has to determine as to whether the act of the
petitioner has a connotation of sexual intent. In this regard, it is to be
noted that the place of occurrence is located near the residence of
the alleged victim girl. Near the place, a group of persons were
playing cards and while she was playing the petitioner asked her for a
glass of water to which she complied by bringing the said water to
him. 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."
20. Thus, as the incident had taken place in the broad daylight in the
presence of other people, it cannot be said that the hand of the prosecutrix was
held up by the present appellant with the sexual intent.
21. As discussed hereinabove, the appellant was in the state of
insobriety and the prosecution did not make any effort to examine the appellant
upon his arrest while subjecting him to medical examination in order to
ascertain, as to whether he had consumed any intoxicating substance or not.
22. Therefore, in view of the aforesaid obtaining circumstances, as there
is complete failure on the part of the prosecution to establish that the hand of
the victim was held up by the present appellant with sexual intent, there could
not been conviction under Sections 9(m) and 10 of the POCSO Act.
23. Accordingly, the appeal is allowed. The appellant is acquitted of the
aforesaid offence. The appellant is in jail, he is directed to be released
forthwith, if not required in any other offence.
24. Record of the trial Court be sent back immediately along with a copy
of this judgment for information and necessary action.
(MANINDER S. BHATTI)
JUDGE
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