Gauhati High Court Upholds Teacher's POCSO Conviction For Touching Minor's Body With Stethoscope, Pressing Breast & Private Parts

The Gauhati High Court last week upheld the conviction of a school teacher under POCSO Act holding that inappropriately touching a minor's body using a stethoscope, touching her breast, applying ointment on abdomen and touching her private parts on pretext of giving medical examination amounts to sexual harassment.

The single judge bench comprising Justice Pranjal Das observed:

“...Similarly, under Section 11(ii) of the POCSO Act, if a person with sexual intent makes a child exhibit his body or any part of the body so that they are seen by that person or any other person, he would be said to commit sexual harassment. In the context of these ingredients, when the improper act of the appellant is considered, it can also be said to fall within the ambit of sexual harassment under the IPC as well as under the POCSO Act, at least within the ambit of Section 11 (ii) of the POCSO Act. It is clear that the ingredients of section 11 (ii) of the POCSO Act would be satisfied as the appellant on the pretext of medical examination made the child victim expose her abdomen and thereafter, proceeded to touch her inappropriately on breast, abdomen and private parts. The subsequent acts clearly indicate that the act of the appellant in exposing the abdomen of the child was with a clear sexual intent to commit these sexual acts.”

Facts of the Case

On February 20, 2022, a zero FIR was forwarded to one police station by the Officer in charge of another Police Station about a complaint lodged by the mother of the minor girl, stating that the accused school teacher had sexually exploited the minor girl under the pretext of treating her by using a stethoscope and applying ointment with his bare hand over her body, pressing her breast, stomach and private parts and also inserting his fingers there.

FIR was registered under Sections 376(b)(rape)/354 (outraging modesty) of IPC read with Section 6 of the POCSO Act, 2012, and investigation was initiated. After completion of the investigation, a charge-sheet was filed against the appellant under Section 354 IPC read with Section 8 of the POCSO Act.

The Trial Court in its judgment dated April 11, 2023 convicted the appellant under Section 354 (A)(1)(i) of IPC read with Section 12(sexual harassment) of the POCSO Act and sentenced him to undergo one year, one month and three weeks of imprisonment.

Aggrieved by the conviction and order of sentence, the appellant filed an appeal before the high court. 

Arguments

The Counsel appearing for the appellant submitted that foundational facts were not proved and that there was no gesture on the part of the appellant to attract the sections under which he has been convicted. It was argued that the ingredients of sexual harassment are not met and that there was no intention or premeditation on the part of the appellant. It was further argued that use of stethoscope was not an illegal act and the trial court erred in convicting the appellant for the sections for which he was not charged.

On the other hand, the public prosecutor submitted that there is no illegality in the judgment and that the appellant not being a medical practitioner was not authorized to use a stethoscope. It was further submitted that the testimony of the prosecution witnesses is cogent and that there is no contradiction between the testimony of the victim and the brother.

The Amicus Curiae appearing for the informant submitted that the sentencing undertaken by the trial court indicates that the offence for which the appellant was convicted is a lesser offence. It was argued that the stethoscope was used to commit a sexual offence. It was further submitted that the appellant as accused during the trial was unable to discharge the presumption under the POCSO Act and that he was rightly convicted and sentenced.

Court's Decision

The Court noted that the testimony of the victim is clear and cogent in her examination-in-chief and such testimony of the victim girl remains completely unshaken in cross-examination.

“It has emerged from the evidence produced by the prosecution that the appellant was a teacher and he was not medically qualified in any manner to conduct medical examination. In fact, the victim in her testimony has stated that though he put the stethoscope on his ears but while touching her inappropriately on her abdomen, breast and private parts, he did not use the stethoscope at all. Therefore, it is clear from her testimony that not only the appellant was not a doctor qualified to conduct medical examination, but the use of the stethoscope at the time of examination was merely a pretext to touch and explore the body of the victim girl in an inappropriate manner,” the Court observed.

The Court said that putting on the stethoscope was a mere pretext of giving an impression of medical examination though the actual intent and act of appellant was to inappropriately and sexually touching the victim girl.

“The fact that the stethoscope was a mere pretext is also fortified by the statement of the IO (PW) 13 in his cross-examination that he found that the stethoscope was not in working condition. In any case the same is also stated by the appellant in his examination under section 313 Cr.P.C. in answer to question No. 3 as already discussed,” the Court said.

The Court observed that on the basis of the evidence on record, the ingredients of section 354 IPC and Section 8 of the POCSO Act had been proved during the trial.

“However, unfortunately the trial court overlooked the said aspect and did not convict and sentence the appellant under section 354 IPC and Section 8 of the POCSO Act. The prosecution also did not choose to prefer an appeal against the acquittal of the appellant for the penal provisions of section 354 IPC and section 8 of the POCSO Act,” the Court stated.

However, the Court noted that the trial court despite the said acquittal proceeded to convict the appellant for the offence of sexual harassment under the IPC and the POCSO Act. It further noted

It was held by the Court that the ingredients of section 11(ii) of the POCSO Act would be satisfied as the appellant on the pretext of medical examination made the child victim expose her abdomen and thereafter, proceeded to touch her inappropriately on breast, abdomen and private parts.

Thus, the Court upheld the conviction and sentence of the appellant under Section 12 of the POCSO Act, 2012 read with section 354(A)(i) of IPC.

Case Title: Shri Om Prakash Sah v. The State of Nagaland & Anr.

Case No.: CRAPL/1/2023

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