Mumbai Court convicts’ man under POCSO: Google’s definition of not including bum as ‘private part’ may not be acceptable in the Indian context

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The Court had to decide whether, under Section 7 of the POCSO Act, the act of ‘touching the bums’ of the victim by the accused would constitute an offence. 

A Special Court dealing with cases related to the Protection of Children from Sexual Offences (POCSO) Act has ruled that an individual has been convicted of sexual harassment under Sections 354, 354A of the Indian Penal Code and Section 10 of the POCSO Act. The definition of a private party must be understood according to the social context. (Maharashtra State v. Sahar Ali Shaikh) MA Baraliya, the appointed POCSO court, had to consider whether the accused’s act of ‘touching the bums’ of the victim would constitute an offense under Section 7 of POCSO.

The Court held that Google’s definition of not including bum in the private part may not be an acceptable interpretation as far as Indians are concerned, clarifying that “the term private part is to be interpreted in the context of what it means in our society”. 

Division 7 

“Whoever touches the child’s vagina, penis, anus or breast with sexual intent or does any other sexual act involving physical contact without penetration, sexual assault is said to be committed.” The Court acknowledged that the accused had not touched either the victim’s vagina, breast, or anus. 

However, it ruled that it is not possible to conclude that rubbing the victim’s buttocks is without sexual intention.

By stating that the girl’s father had received a call from his mother stating that someone had teased his daughter, the accused refuted the allegations made against him. 

There is a great deal of distinction between teasing and touching. Bum is also not, as claimed by the victim, a private part, the prosecution argued. 

The prosecutor responded that there was no basis to disbelieve the victim and her father, who had contacted the police immediately. 

“The victim at the material time who was 10 years old felt insulted and scared too much by the incident that she immediately revealed it to her mother,” the prosecutor requested.

The Court observed that the actions of the father in running home directly after receiving the call itself would indicate that with his daughter something other than “teasing” had happened. 

It was a telephone call, so it is just normal for a wife to provide information on the phone instead of only suggesting that her daughter had been teased. The order noted that avoiding providing information on the phone would not mean that the daughter was teased only without contact.

“The Court noted, relying on the statements made by the victim to her parents and the police, that a 10-year-old may have expressed that her “private part” was affected, but her language expressed her ordeal, “so there should be no confusion that she was not only teased, but the accused had touched her improperly. 

From the prior actions of the perpetrator, the Court has concluded that he had the sexual intention of committing the offence against the victim.

Accused, and there were three others laughing at her as she was about to buy food. They laughed at her a second time as she was already walking. The previous actions of the accused grinning at her and then touching her shows that it was all sexually meant to seize the opportunity. The state of mind is sexual intention, cannot actually be proven by clear evidence, such intention is to be concluded from the present circumstances of the event,’ read the order. 

The Court sentenced the accused to five years of strict imprisonment and fine payment of Rs. 10,000 while keeping so. In default of fine payment, he will be sentenced to two additional months in jail.

The Court further revoked the bail awarded to the suspect and ordered him to be taken into custody.

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‘Law is not law if it violates the principles of eternal Justice’ very beautifully penned down by Lydia Maria Child and I strongly believe, if the law is not made for the goods of people then at least it should not violate the essence of the principle of law that is “JUSTICE”. Law is made to keep each section of society on an equal platform and being a member of the law fraternity, I will try to contribute to the welfare of society. I am Purnima and I graduated from zoology (Hons) and am currently pursuing a law degree from Lloyd law college, Greater Noida. My desire is to bring a fair and unjust environment to our society through my hard work and persistent efforts.