While upholding the conviction of a man, the Bombay High Court has held that the act of offering money in exchange for sexual favours, combined with physical control over the victim’s hand, satisfies the statutory requirements under Section 7 and attracts punishment under Section 8 of the POCSO Act.

The appeal, before the High Court, was filed against the judgment passed by the Additional Sessions Judge in a POCSO case whereby the appellant/accused was convicted for offences under Sections 354 and 354-A of the Indian Penal Code (IPC) and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Single Bench of Justice Nivedita P. Mehta held, “The applicability of Section 8 of the POCSO Act is established by the evidence that the appellant caught hold of the minor victim with sexual intent. The act of offering money in exchange for sexual favours, combined with physical control over the victim’s hand, satisfies the statutory requirements under Section 7 and attracts punishment under Section 8. The argument that mere holding of hand without further physical assault cannot constitute an offence is without merit, as the POCSO Act protects children from sexual assault in all its forms, including attempted or inducement-based acts.”

Advocate Shyam R. Jaiswal represented the Appellant while Adll.P.P. Amit Chutke represented the Respondent.

Factual Background

The case dates back to the year 2015, when the victim, a 13-year-old girl, informed her maternal uncle that the appellant visited her house while her parents were at work and offered her Rs. 50 if she allowed him to engage in sexual activity. The victim reportedly raised an alarm, upon which the appellant left the house. The appellant allegedly repeated the act, holding the victim’s right hand and making the same proposition. The victim thereafter informed her maternal uncle, who lodged the FIR.

The trial Court concluded that the acts attributed to the appellant squarely fell within the ambit of Sections 354 and 354-A of the IPC as well as Section 7, punishable under Section 8, of the POCSO Act.

Reasoning

The Bench took note of the core fact that the appellant attempted to induce sexual activity and physically restrained the victim’s hand, which formed the substance of the offence.The Bench stated, “The law recognizes the vulnerability of child victims and does not require corroboration by independent witnesses. In this case, the victim’s testimony is direct, consistent, and corroborated by the FIR and Section 164 Cr.P.C. statement.”

“The acts described by the victim constitute “sexual assault” within the meaning of Section 7 of the POCSO Act, as they involve physical contact coupled with clear sexual intent. The act of catching hold of the hand of a minor child, accompanied by an offer of money and an invitation to engage in sexual activity, unmistakably demonstrates sexual intent. The ingredients of Section 8 of the POCSO Act are fully satisfied. The conduct of the accused further falls within the ambit of Sections 354 and 354-A of the IPC”, it added.

On an overall consideration of the evidence of the victim PW-1, the corroboration from PW–2 and PW–3, the supporting testimony of the Investigating Officer PW-5, and the absence of any credible defence, the Bench noted that the prosecution had proved its case beyond a reasonable doubt. The testimony of the child victim was truthful and reliable. It was noticed that the minor inconsistencies pointed out by the defence were immaterial and did not dent the core prosecution case. “The conviction of the appellant under Sections 354 and 354-A of the IPC and Section 8 of the POCSO Act is therefore well-founded and warrants no interference”, it held.

The Bench further confirmed that the sentence imposed by the Trial Court was in consonance with the statutory minimum prescribed under Section 8 of the POCSO Act. The appellant was therefore directed to undergo rigorous imprisonment and to pay the fine as awarded by the Trial Court. The Bench thus dismissed the appeal.

Cause Title: Sheikh Rafique Sk. Gulab v. The State of Maharashtra (Criminal Appeal No. 772/2019)

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Bombay High CourtJustice Nivedita P. Mehta

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.