BBA.LLB
Sem 1st
Satish Ragde v/s State of Maharashtra
An accused named Satish Ragde attempted to commit
sexual assault on a 12-year-old girl. The offender, lured to the victim by
guava, groped her breast with malicious intent, and before he could remove her
salwar, her mother approached. She then narrated the whole incident to her
mother and they reported the incident to the police. When her mother approached
Salwar’s house, she and their neighbor went inside and found their daughter
locked in a room locked from the outside. The daughter told her mother about
the incident and they reported it to the police. Since the case revolved around
the POCSO Act, the Police filed a charge sheet with the Special Court. The
Special Court sentenced the accused to undergo 3 years of rigorous imprisonment
as well as a $1500 fine for violating Sections 342, 363 & 354 of the POCSO
Act.In an appeal to the High Court of Bombay, the accused was found not guilty
under section 8 of the POCSO Act, convicted of outraging the modesty of the
prosecutrix and imprisoned illegally under sections 354 and 342 of the IPC for
one year and fined Rs500. A non-bailable warrant was also issued against the
accused.
INTRODUCTION
In this case, the accused has appealed to the Nagpur
Bench of the Bombay high Court against the judgment and order dated 05.02.2020
in Special Child Protection Case No. 28 of 2017 passed by the Extra Joint Additional
Sessions Judge, Nagpur. He had touched the private parts of the girl and had
attempted to remove her salwar just before he was stopped by her mother. A
12-year-old girl was wrongfully confined in order to commit rape against her.
In the case, the accused was convicted for the offenses of outraging women’s
modesty, wrongful confinement & kidnapping under sections 354, 342 &
363 of the Indian Penal Code, and for sexual assault under section 8 of the
POCSO Act with imprisonment for 3 years and fine. The offender had appealed to
the High Court against the Special Court’s order.
BACKGROUND OF THE CASE
POCSO, or Protecting Children from Sexual Assault
& Harassment Act, was passed in 1985. Its purpose is to protect children
from sexual assault and harassment, and to acknowledge their vulnerability.
Sexual assaults against minors pose a particular challenge due to their
physical & mental vulnerability and the abuser’s ability to overcome it
easily.
The special court sentenced the accused to undergo
rigorous imprisonment for 3 years and to pay a fine of Rs.1500/- after
recording his conviction under Section 342, 363 & 354 of the Indian Penal
Code and Section 8 of the POCSO Act.
This is a case of sexual harassment against a 12-year-old
girl. The Joint Additional Sessions Judge of Nagpur had noted the
circumstantial evidence as well as the testimony of the witnesses. The Special
Court sentenced the accused to undergo rigorous imprisonment for 3 years and to
pay a fine of Rs.1500/- after recording his conviction under Section 342, 363
& 354 of the Indian Penal Code and Section 8 of the POCSO Act.
FACTS OF THE CASE
Their neighbor notified the mother that she had seen
the accused bringing the prosecutrix to his residence and showed her the
accused’s residence on 14.12.2016. After the prosecutrix went to bring guava,
and didn’t return for a long time, the mother went out in search of her. Upon
arriving at the house, the mother asked the accused about the whereabouts of
her daughter, which he denied knowing. The mother suspected & searched the
house of the accused. While searching the first floor, she found her daughter
crying in a room locked from the outside as soon as she was taken outside, the
prosecutrix recounted the incident to her mother. On the pretext of giving her
guava, the accused took her into his house and pressed her breasts. When he
tried to remove her salwar, she protested. The prosecutrix lodged FIR against
the accused. Police, after conducting an investigation, filed the charge-sheet
before the Special POCSO Court, Nagpur.
After she was taken outside, the prosecutrix told
her mother that the accused had taken her into his house on the pretext of
giving her guava. He pressed her breast and she screamed when he attempted to
remove her salwar. She subsequently lodged a FIR against him. After an
investigation was conducted by the police, a charge-sheet was filed by the
police before the Special POCSO Court in Nagpur.
According to the Special Court, the accused was
convicted under Sections 354, 363 & 342 of IPC for outraging girl’s
modesty, kidnapping & wrongful confinement, and under Section 8 of the
POCSO Act for sexual assault, and he was sentenced to rigorous imprisonment for
3yrs with a fine of Rs500.
RELATED PROVISIONS
According to this definition of ‘Sexual Assault’
provided under Section 7 of the POCSO Act, the offence requires the following
elements: Act must be committed with sexual intention
A person or any other person touches the child’s
vagina, penis, anus, or breast, or makes the child touch such a person or
another person’s vagina, penis, anus, or breast.
Act with sexual intent which involves physical
contact without penetration.
POCSO Act, section 8, defines the punishment for
sexual assault referred to in section 7 of the act, which states that, “Whoever
commits sexual assault shall be punished with imprisonment of either kind for a
term not less than three years, but not more than five years, and shall also be
fined.”
If a person is imprisoned for over a year, or fined
more than a thousand rupees, or both, under Section 342 of the Indian Penal
Code, he or she is punished by imprisonment.
JUDGMENT
It was noted that the learned counsel failed to
establish from the record that the testimony of the minor girl’s mother and the
minor girl could not be taken into consideration or that they were not
competent witnesses. The responses of the minor girl to the questions were not
illogical.
Additionally, she informed her mother of the
incident immediately after it occurred, and on that basis, the First
Information Report was filed. The testimony of both mother and daughter is
consistent and valid under section 6 of Evidence Act, i.e., the principle of
Res gestate applies.
It is unknown whether the accused removed the top of
the prosecutrix or inserted his hand while groping her breasts, which would not
constitute direct physical contact or “Skin-to-Skin” contact between the
accused and the victim according to section 7 of POCSO act.
An act committed by the accused would seem to fall
under the definition of “Outraging the modesty of a woman” provided under
Section 354 of the Indian Penal Code.
CONCLUSION & ANALYSIS
The judgment passed by the additional Judge, J.
Pushpa Ganediwala, has generated outrage on social media, as many have
questioned its impact on the general understanding of sexual assault, and would
it let perpetrators get off with a clear intention of sexually assaulting a minor
but cannot be proven as such with a lesser penalty.
As a result of its interpretation, Bombay High Court
reduced the punishment of the accused. However, the minor should have been
convicted with severe punishments directed under the POCSO Act. Therefore, the
interpretation of the court goes over the basic idea of the statute.
Therefore, the Bombay High Court’s interpretation
reduced the punishment of the accused. Whereas, the accused should have been
convicted with severe punishments under the POCSO Act, due to the minor’s
vulnerability. Therefore, the court’s interpretation violates the law’s basic
idea.
Also, while passing the judgments, the bench has not
given much consideration to the intentions of the accused and the fact that the
victim is a minor and entitled to greater protection from sexual offences.
Meanwhile, in the case of Jagar Singh v State of Himachal Pradesh, it was
well-established that when two interpretations are possible, the interpretation
favorable to minors should be adopted by the court.
Also, in passing judgments, the bench has not given
much weight to the intention of the accused and the fact that victim is a minor
and is entitled to greater protection from sexual offences. Also, in Jagar
Singh v State of Himachal Pradesh, it was well-established that when two
interpretations are possible, then the interpretation in favor of minors should
be adopted by the court to achieve justice.
In addition, the bench did not give much
consideration to the intentions of the accused and the fact that the victim was
a minor and should be afforded greater protection from sexual offences. Also,
in the case of Jagar Singh v. State of Himachal Pradesh, it was decided that if
two interpretations were possible, the interpretation favorable to minors should
be adopted.
As well as that, while passing judgments, the bench
has not paid much attention to the intentions of the accused and the fact that
the victim is a minor who should receive greater protection against sexual
assaults. Also, in Jagar Singh v State of Himachal Pradesh, it has been well
established that when two interpretations are possible, the interpretation in
favor of minors should be adopted by the court to satisfy the ends of justice.
