911cri.apeal445.2020.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 445 OF 2020

Libnus s/o Fransis Kujur,

Age 50 years, Occ. Labour,
R/o. Swami Vivekanand Nagar,
Tq. & Dist. Gadchiroli
…APPELLANT

// VERSUS //

State of Maharashtra through

Police Station Officer,
Police Station Gadchiroli,
District Gadchiroli
…RESPONDENT
___________________________________________________________

Shri A.C. Jaltare, Advocate for the appellant.

Shri M.J. Khan, A.P.P. for respondent – State.
___________________________________________________________

CORAM : PUSHPA V. GANEDIWALA, J.

JANUARY 15, 2021.

ORAL JUDGMENT :

This appeal challenges the judgment and order passed

by the Special Judge, Gadchiroli, District Gadchiroli in Special

POCSO Case No. 07/2019 dated 05/10/2020 by which the

appellant/accused is convicted for the offence punishable under

Sections 354-A(1)(i) and 448 of the Indian Penal Code (for short

“IPC”) and Sections 8, 10 and 12 read with Section 9(m) and 11(i)

of the Protection of Children from Sexual Offences Act, 2012 (for

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short POCSO Act), in Crime No. 63/2018 registered at police station

Gadchiroli, Dist. Gadchiroli.

2. For the offence punishable u/s 448 of IPC, the

appellant/accused is sentenced to suffer S.I. for one year and fine of

Rs.1000 in default S.I. for 15 days.

3. For the offence punishable u/s 10 of POCSO Act, the

appellant/accused is sentenced to suffer R.I. for 5 years and fine of

Rs. 25,000 in default S.I. for 6 months. No separate sentence is

passed for the offence punishable u/s 8 and 12 of the POCSO Act

and Section 354-A(1)(i) of the IPC.

4. The prosecution story, in brief, is as under :

i) On 12/02/2018, the informant (mother of the

prosecutrix) lodged a report stating therein that on 11/02/2018,

she had gone to her duty during the period between 8.00 a.m. to

4.00 p.m., and when she returned, she noticed the presence of

appellant/accused in her house and molesting her minor daughter,

aged about five years.

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ii) It is stated that when the informant left for her duties,

her two daughters, aged around 3 and 5 years were alone in the

house. Her husband had been out of station. It is alleged that the

moment she saw a person in her house holding hands of her elder

daughter, she shouted, as a result of which her neighbours gathered

there. Thereafter, the appellant/accused ran away.

iii) On the report of the informant, a crime bearing No.

63/2018 came to be registered against the appellant/accused for

the offence punishable under Sections 354-A(1)(i) and 448 of the

Indian Penal Code and Sections 8, 10 and 12 read with Section

9(m) and 11(i) of the Protection of Children from Sexual Offences

Act, 2012. After investigation, police filed charge-sheet before the

Special POCSO Court, Nagpur.

iv) The Special Court framed charge against the appellant/

accused for the offences punishable under Sections 354-A(1)(i) and

448 of the IPC and Sections 8, 10 and 12 read with Section 9(m)

and 11(i) of the POCSO Act. The charge was read over and

explained to the appellant/accused in vernacular, to which he

pleaded not guilty and claimed to be tried. His plea was recorded.

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v) To establish charge against the appellant/accused, the

prosecution examined in all six witnesses and also brought on

record relevant documents. The trial Court examined the

appellant/accused under Section 313 of the Code of Criminal

Procedure and recorded his statement. His defence is of total denial.

vi) The trial Court found the prosecution evidence

trustworthy and passed the judgment of conviction and sentenced

the appellant/accused as above. This judgment is impugned in the

present appeal.

5. I have considered the submissions put forth on behalf

of both the sides. I have also perused the record with the assistance

of learned both the counsel.

6. In order to facilitate appreciation of evidence, it would

be apposite to reproduce the relevant portion of the testimony of

the informant (PW1), who is the only material witness with regard

to the incident, which reads thus :

1] XXXX “On that day, I returned from my work to

my house at 4.00 p.m. I saw that one person was
present in my house. He was not allowing my two
daughters from the house from that place. That
person had caught hold the hands of victim i.e. my
elder daughter. That person was taking victim

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inside the room of my house. I saw that victim

was moving her pant in above direction. I
shouted. I abused that person in the words, “Kon
Hosre Bhadwa, Kai Karat Aahe”. Despite it, that
person did not set free my daughter from his
clutches. Again I shouted. Thereafter, he set free
my daughter. Initially I had not seen the face of
that person. But when he turned, I saw his
face.XXXX

7. Apart from the above, the informant (PW-1) further

testified that her daughter informed her that appellant/accused

removed his penis from the pant and asked her to come to the bed

for sleeping. The informant also noticed that the zip of the pant of

the appellant/accused was opened.

8. The appellant/accused is convicted for the commission

of offence of ‘aggravated sexual assault’, which is punishable under

Section 10 of the POCSO Act. The offence of ‘sexual assault’ is

defined u/s 7 of the POCSO Act while ‘aggravated sexual assault’ is

defined u/s 9 of the said Act. To examine whether the alleged act

of the appellant/accused fits into the definition of ‘aggravated

sexual assault’, it would be necessary to look into the definition of

‘sexual assault’, which is reproduced below:

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,

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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.

As per this definition, the offence involves the following

necessary ingredients :

(i) Act must have been committed with sexual

intention.
(ii) Act involves touching 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.

9. In the case in hand, undisputedly, the age of the

prosecutrix is five years. If the offence of ‘sexual assault’ is proved

against the appellant/accused, the prosecutrix, being of age below

twelve years, the conviction has to be recorded for the offence of

‘aggravated sexual assault’.

10. The punishment for aggravated sexual assault is

imprisonment of either description for a term which shall not be less

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than five years but which may extend to seven years, and shall also

be liable to fine.

11. The appellant/accused is prosecuted for the charge of

‘aggravated sexual assault’. As per the definition of ‘sexual assault’,

a ‘physical contact with sexual intent without penetration’ is

essential ingredient for the offence. The definition starts with the

words - “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…...’ The words ‘any other act’ encompasses

within 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 closure to that. The acts of ‘holding the hands of

the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly

witnessed by PW-1, in the opinion of this Court, does not fit in the

definition of ‘sexual assault’.

12. The minimum sentence for this offence is five years

imprisonment. Considering the nature of the offence and the

sentence prescribed, the aforesaid acts are not sufficient for fixing

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the criminal liability on the appellant/accused for the alleged

offence of ‘aggravated sexual assault’. At the most the minor

offence punishable under Section 354-A(1)(i) of the IPC r/w

Section 12 of the POCSO Act is proved against the appellant.

13. In this view of the matter, the prosecution could

establish that appellant/accused entered into the house of the

prosecutrix with the intention to outraged her modesty or sexual

harassment as defined u/s 11 of the POCSO Act. Therefore, the

conviction of the appellant/accused for the offence punishable

under Sections 448 and 354-A(1)(i) of the IPC r/w Section 12 of the

POCSO Act is maintained. The punishment provided for the offence

u/s 345-A(1)(i) of the IPC and Section 12 of the POCSO Act is

sentence for a term which may extend to 3 years or/and fine or with

both. The punishment for the offence of house trespass is

imprisonment for a term upto one year and fine upto Rs. 1000 or

with both. It is informed that till date the appellant/accused has

undergone total imprisonment of about 5 months.

14. Considering the nature of the act, which could be

established by the prosecution and considering the punishment

provided for the aforesaid crimes, in the opinion of this Court, the

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imprisonment which he has already undergone would serve the

purpose.

15. For the reasons aforestated, Criminal Appeal is partly

allowed. The conviction of the appellant/accused for the offence

punishable under Sections 8 and 10 of the POCSO Act, is quashed

and set aside. The conviction of the appellant/accused for the

offence punishable under Sections 448 and 354-A(1)(i) of the IPC

r/w Section 12 of the POCSO Act is maintained. However, his

sentence is modified to the extent he has already undergone.

16. As the appellant/accused is in custody, he shall be set

free, if he is not required in any other criminal case. Criminal

Appeal is accordingly partly allowed and disposed of.

JUDGE
D.S.Baldwa/C.L.Dhakate

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