Sexual Offences Against Children: Bombay HC Says Accused Should Be "Mercilessly And Inexorably Punished" [Read Judgment]

Justice Prithviraj K Chavan concluded the appeal was devoid of merits and noted-

"This is a case in which there is no question of reformation of the appellant as he was quite a grown-up male who knew the consequences of his act."

Sagar was convicted under Section 6 of the POCSO Act, Section 342 of IPC and directed to pay compensation of Rs.25,000 to the victim as per section 33(8) of the POCSO Act. He was acquitted under Sections 376, 366 (A) of the IPC.

Case Background

The victim was residing at a Chawl in Powai, Mumbai. On April 18, 2015, she went to play with a small boy named Babu in her neighbourhood. One of the neighbours, PW 6, asked another neighbour PW 3, who is a relative of the victim's family to see what Sagar was doing. PW 3 went to the backside of the house of one Mrs.Sawant (appellant's aunt) and peeped in the house through a space in the door, to her shock, she noticed that the victim was made to lie on the ground in a prone position while the appellant was lying on top of her. Suspecting some foul play, she knocked the front door and raised shouts by calling the victim's name. The victim came out after five minutes.

PW 3 took her home and asked what the appellant was doing. The victim told PW 3 that when she went in search of Babu for playing, She further said that the appellant called her on the pretext that he will show her songs on his mobile the appellant took her in the house, bolted the door from inside and then pulled her slacks down and made her lie in prone position on the ground. The victim stated that Sagar performed anal sex with her.

FIR was registered and appellant was arrested. The victim was examined by Dr. Meena Savjani.

In a judgement dated June 30, 2018, Special POCSO Court convicted the appellant.

Judgement

Appellant's counsel Aniket Vagal contended that there is no medical evidence of the victim indicating as to whether she was sexually assaulted or molested by the appellant. Her mother's evidence is hearsay and inadmissible, he said.

Vagal referred to the Forensic Science Laboratory report and submitted that the reports reveal that no male DNA was detected in vulval swab or anal swab of the victim.

On the other hand, APP SV Gavand vehemently opposed the arguments of appellant's counsel and contended that the Special Judge had rightly appreciated the evidence of the prosecution witnesses and that there is no need to refer to the medical evidence as the appellant was stopped just when he was about to penetrate the victim. For all purposes, he was about to commit an offence as provided under section 3 of the POCSO Act, APP argued.

After referring to the statement of the victim girl recorded by the Magistrate Court and testimonies of other witnesses, Court observed-

"Interestingly, despite examining two defence witnesses, the appellant has not succeeded in creating any dent in the testimonies of PW 2 (victim), PW 3 and PW 6, so also in respect of his so-called false implication in the instant case due to a quarrel which had occurred long back."

Justice Chavan noted that Section 18 of the POSCO Act provides punishment for attempt to commit an offence. He said-

"As can be seen from the aforesaid discussion of facts and evidence on record, the victim called the appellant as Dada, meaning thereby, she had full faith and respect towards the appellant to that of an elder brother. The appellant betrayed her trust by molesting her. It is also apparent from the aforesaid discussion that the appellant was about to commit aggravated penetrative sexual assault upon PW 2 but due to intervention of PW 3-M, he could not succeed in his nefarious design and, therefore, the act was in fact about to be accomplished by him since he had already started movements of his penis over the posterior part of PW 2-G."

Thereafter, Court referred to the Supreme Court's judgement in Madan Gopal Vs. Naval Dubey, AIR 1992 SCW, 1480 wherein the apex court observed-

"Though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms."

Thus, dismissing the appeal, Court said-

"The dicta is loud and clear as to how such offences are required to be dealt with who are menace to the civilized society and, therefore, they should be mercilessly and inexorably punished."

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