The Meghalaya High Court, while upholding a POCSO conviction, rejected the defence argument that that acts of hugging or embracing is mere expressions of love and friendship.

The Court, while interpreting physical gestures in a case involving allegations of sexual intent, ruled in favor of the contention that actions such as forcibly kissing, holding hands, and engaging in unwanted physical contact clearly indicate the presence of sexual intent.

The case originated from a written complaint lodged by the father of a 17-year-old girl, alleging molestation by the Accused near Presbyterian Secondary School in Ri Bhoi District. The Accused was convicted and sentenced by the Special Judge (POCSO) under Section 7/8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

During the proceedings before the Bench of Justice B. Bhattacharjee, the Defense argued that hugging or embracing should not be criminalized as they symbolize expressions of love and friendship, devoid of malicious intent. However, the Court rejected this argument, emphasizing the survivor's detailed account of the Accused's unwanted advances.

The Public Prosecutor (PP) supported the conviction, citing strong corroboration between the survivor's testimony and eyewitness accounts. The survivor recounted the incident, stating that the Accused attempted to kiss her forcibly and made unwanted physical advances during school recess. Her distress prompted her friends to intervene, leading to the accused's arrest.

The Court noted the absence of evidence supporting the appellant's claim of a friendly interaction, affirming the Trial Court's decision. It highlighted the lack of hostility or vindictiveness on the survivor's part and upheld her testimony as credible.

The Judge noted that in the present case, there is no allegation in the FIR that the appellant has committed the crime on the survivor on the ground of her belonging to a particular community or caste. "The conviction of the appellant under Section 3(1)(w)(i)(ii) SC/ST Act appears to be ex facie illegal and unwarranted because the prosecution case in the entire charge-sheet did not mention that the offence alleged was committed by the appellant upon the survivor based on her caste or community. Therefore, the necessary ingredient for the offence under Section 3(1)(w)(i)(ii) SC/ST Act was not made out," he said.

The Court opined that the conviction and sentence of the Appellant under Section 3(1)(w)(i)(ii) of the SC/ST Act cannot stand scrutiny of law and is hereby set aside and quashed. However, it upheld the conviction of the appellant under Section 7/8 of the POCSO Act.

Taking note of the fact that the Appellant was only about 19 years old at the time of the incident and there is no other criminal record against him and also that he is a student, the Court reduced the period of sentence of imprisonment from 3 years 6 months to 3 years and imposed a fine of Rs. 20,000.

"The amount of fine imposed shall also stand reduced from Rs. 2,00,000/- to Rs. 20,000/- and in default of payment, the appellant shall undergo further 1 month’s imprisonment. Except for the above, the other stipulations made by the Trial Court in the order of sentence will remain unchanged", the Court ordered.

Accordingly, the Court partly allowed the Appeal.

Appearence:

Petitioner: Advocate C. H. Mawlong

Respondent: K. Khan (AAG), S. Sengupta (Addl. Sr. GA), J. N. Rynjah (GA)

Cause Title: Shri. Wallamhok Kshiar v. State of Meghalaya and Ors. [Crl. A. No. 20 of 2023]

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Justice Biswadeep BhattacharjeeMeghalaya High Court

Sukriti Mishra