Making Victim Naked Proves Culpable Mental State, Touching Private Part Not Required: Calcutta HC Upholds Conviction For Aggravated Sexual Assault In POCSO Case

The Calcutta High Court on Friday upheld conviction for the offence of aggravated sexual assault under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act) by opining that surrounding circumstances like the accused making the minor victim girl naked prove the culpable mental state of the accused. 

Justice Bibek Chaudhuri also rejected the argument that since nobody saw the accused touch the private part of the victim girl, it would not constitute the offence of sexual assault. 

"Learned Advocate for the appellant submits that nobody saw the accused touching private part of the victim and from the evidence of PW3 it is found that the accused was sitting by the side of the victim girl who was lying on the varanda of PW3 in naked condition, the accused ought to have been convicted under Section 11 of the POCSO Act for the offence of sexual harassment. I am not in a position to accept such submission made by the learned Advocate for the appellant because there was no reason for not to treat the specific acts by the appellant as the acts of sexual assault within the meaning of Section 7 of the POCSO Act", the Court observed. 

In the instant case, a written police complaint had been filed by the father of the minor victim girl that on August 18, 2018, his minor daughter had gone to the house of his brother to defecate as they had no toilet in their house at the relevant point of time. On her way to the house of her uncle, the accused forcibly took her behind the latrine situated beside the house and pulled down her pant.

It was further alleged that the accused had opened his pant, touched the breast of the minor girl and her private part with his fingers. When he tried to commit rape upon her, the minor girl had cried out attracting local villagers and thereafter the villagers had apprehended the accused in such condition. 

The Court noted that during trial, the concerned trial judge had found that the accused did not commit any offence of penetrative sexual assault and therefore he had held that the accused is liable to be convicted for the charge of aggravated sexual assault within the meaning of Clause (m) of Section 9 of the POCSO Act.

Enumerating upon the interpretation of the phrase 'any other act' provided in the definition of 'sexual assault' under Section 7 of the POCSO Act, the Court observed, 

"The words 'any other act' encompasses with itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of "Ejusdem-generis". The act should be of the same nature or close to that."

Upon perusal of the record, the Court further noted that from the evidence of the victim girl it is evident that she had gone to her uncle's house to defecate when the accused caught hold of her from behind, gagged her mouth and forcibly took her to the house where he pulled down her pant and touched her breast and vagina. It was further noted that the eyewitness testimony had revealed that the victim was seen lying on the varanda in a naked condition and the accused was sitting by her side.

Opining that the sexual intent of the victim has been proved beyond any shadow of doubt, the Court further underscored, 

"The surrounding circumstances like the accused having taken the victim to the house of PW3 when she was not present, pulling down her pant, making her naked amply prove culpable mental state of the accused and in such a case, the court is entitled to raise statutory presumption about the culpable mental state of the accused as permitted under Section 30 of the POCSO Act. The said presumption has not been rebutted by the accused by proving that he has no such mental state. Therefore, sexual intent of the accused is established beyond any shadow of doubt."

Accordingly, the Court upheld the order of conviction and the sentence imposed by the lower court. 

Case Title: Chitta Biswas v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 172

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