In POCSO SPECIAL CASE NO.106 OF 2016-BOM HC- Intentionally pulling victim’s hair and calling her “item”, amounts to outraging her modesty: Bombay HC convicts POCSO accused in case of sexual harassment
Justice S.J. Ansari [20-10-2022]

Read Order: THE STATE OF MAHARASHTRA vs.  ABRAR NOOR MOHAMMAD KHAN

LE Correspondent

Mumbai, October 26, 2022:  In a case where the accused had constantly followed the victim and sexually harassed her by addressing her by using the word “item”, the Bomaby High Court has opined that victim being the sole witness in the matter, cannot  be the reason to doubt her testimony.

While observing that the statement u/s.164 of the Cr.P.C. can only be used for the purpose of corroboration or contradiction and it is not by itself a substantive piece of evidence, the Single-Judge Bench of Justice S.J. Ansari held the accused in present case guilty for the offence punishable under Section 354 of the  Indian Penal Code, 1860 and under section 12 of the Protection of Children from Sexual Offences Act, 2012.

The accused in the matter in hand was being  prosecuted for having outraged the modesty of a minor girl after stalking her, insulting her with the intent or knowledge that the same would provoke her to break public peace or to commit any offence, of having threatened her as also of sexually harassing the said child. 

The case of the prosecution was such that the victim in the present case was a 16-year-old girl who had started living in the area of the accused who was a boy who always used to tease the girls who would pass through the lanes of Millat Nagar. The said accused also used to consistently follow the victim when she used to go to and fro the lanes of Millat Nagar, used to tease her and sometimes used to call her “item”. He and the other members of his group also used to pass comments upon the victim 'X' and looked upon her with an evil eye. The victim 'X' used to tell the accused not to do so but he did not pay any attention to her words. As the victim 'X' did not want the matter to escalate into a fight, she did not inform her family members about the harassment being suffered by her at the hands of the accused.

On July 14, 2015 at about 1.30 p.m. the victim 'X' had gone to her school for some work. After completing the same, when she was returning at about 2.10 p.m. and walking through a lane of Millat Nagar, the accused who was sitting with his friends in the lane came behind her, pulled her hair and said “kya item kidhar ja rahi ho ?” As the victim 'X' felt ashamed, she told the accused not to do so. At this, he started abusing her and told her to do whatever she could as she could not harm him in any way. Hence, the victim gave a call to the number “100” from her mobile phone and asked for help. 

A report about the incident then came to be lodged by the victim 'X' which resulted in the lodging of an FIR against the accused for the offences punishable u/s.354, 354-D, 504, 506 of the Indian Penal Code and u/s.12 of the Protection of Children from Sexual Offences Act, 2012.  The charge then came to be framed against the accused to which he pleaded not guilty and claimed to be tried. 

After hearing the submissions of the Court noted it was of the opinion that the prosecution has certainly been able to prove that on July 14, 2015 at about 14.10 hours at Mumbai, the accused had come behind the victim, had pulled her hair and had then said, “ae item sun na”. It proved that though the victim 'X' pushed the accused and told him not to do so, he had started abusing her and told her to do what she could as she could not harm him in any way.  

It was further noted by the Court that there was no iota of doubt that the first witness-the victim 'X' was the sole witness in the matter. The same, however, cannot automatically result in her testimony being doubted or disbelieved. This is because, if the said testimony is found to be cogent and reliable, there is no legal principle on the basis of which it can be ignored for want of corroboration from any other witness, the Court observed. 

 As regards the alleged contradictions between the examination in chief of the first prosecution witness, the victim 'X' and her statement u/s.164 of the Cr.P.C., it would have to be pointed out that the statement u/s.164 of the Cr.P.C. can only be used for the purpose of corroboration or contradiction. By itself, it is not a substantive piece of evidence, the Court stated. 

At the outset, the Court was of the opinion that  the prosecution was certainly able to prove that on July 14, 2015  at about 14.10 hours at Millat Nagar, A. G. Link road, Sakinaka, Mumbai, the accused had come behind the victim, had pulled her hair and had then said, “ae item sun na”. It was also  proved that though the victim 'X' pushed the accused and told him not to do so, he had started abusing her and told her to do what she could as she could not harm him in any way. 

After the facts were duly proved, the Court next assessed as to whether the same were sufficient to prove the offence punishable u/s.354 of the Code as against the accused. 

In view of the same, the Court noted that in order to bring home an offence under section 354-D of the Code, the prosecution in the present context, is required to prove that the accused had followed the victim 'X' and contacted her repeatedly to foster personal interaction despite a clear indication of disinterest by her. In pursuance of the same, the Court noted the only fact proved against the accused was of that he was continuously following- PW 1 the victim 'X', passing comments upon her and addressing her by using the word “item”. 

However, there was no evidence to prove that he had repeatedly contacted her to foster personal interaction. Hence, the Court stated   that the offence of stalking as it is defined under 354-D (1)(i) of the Code, cannot be said to have been proved against the accused. 

It was further stated by the Court that to prove the offence under section 504 of the Code, the prosecution has to prove that the accused had intentionally insulted a person and had thereby given provocation to the said person either intending or knowing it to be likely that such provocation would cause him to break public peace or to commit any other offences. 

With respect to the same, the Court noted that there was no cogent evidence on the record to prove that the accused had insulted the victim 'X' with the intention or the knowledge that the same would provoke her to break public peace or to commit any offence.

With respect to the commission of offence under the POCSO Act, the Court observed that the that the prosecution can be said to have proved the fact of the accused with sexual intent, repeatedly or constantly following the child i.e. PW 1 the victim 'X' on the day, period and place as alleged thereby sexually harassing her. 

In light of such observations, the accused was held guilty under Section 354 of the  Indian Penal Code, 1860 and under section 12 of the Protection of Children from Sexual Offences Act, 2012  but was acquitted of the offences punishable under section 354-D, 504 and 506 Part-I of the Indian Penal Code.