Last week the Mumbai Court in State v. Abrar Noor Mohd Khan, convicted a 25-year-old businessman for sexually harassing a minor girl by calling her “item”. The accused was being prosecuted for outraging her modesty after stalking, insulting, and having threatened her.
The victim was a 16-year-old girl and the accused was a boy who always used to tease the girls who would pass through the lanes of Millat Nagar, Mumbai. The accused consistently followed the victim to and fro the lanes and teased her by calling her “item”. His other members of the group too passed comments upon the victim and looked at her with an evil eyes. The victim did not inform her family members about these incidents as this matter could easily escalate into a fight.
On 14th July 2015 at about 1:30 p.m. the victim had gone to school for some work after completing the same she was returning at about 2:10 p.m. when the accused who was sitting with his friends in the lane came behind her, pulled her hair, and said: ” item kidhar ja rahi ho?”. As the victim felt ashamed, she told the accused not to do such things. At this, the accused boy started to abuse her so she dialed the number “100” from her mobile phone and asked for help. The police reached after a short while until the accused had run away from the given spot.
The victim along with her father went to Sakinaka Police station to lodge an FIR against the boy for the offenses punishable under sections 354, 354 D, 504, and 506 of the Indian Penal Code and under Section 12 of the Protection of Children from Sexual Offences Act (POCSO). The accused was arrested and immediately released as he was able to secure an anticipatory bail. Thereafter the police filed the charge sheet. The accused pleaded not guilty to charges framed against him and claimed to be tried. He stated that he and the victim were friends before the incident and that a false report had been lodged against him as the victim’s parents do not approve of their friendship. When the matter was brought before the court, the victim was the principal witness and after the cross-examination, her testimony cannot automatically result in being doubted or disbelieved.
Points raised before the court:
- Does the prosecution prove that on 14/07/15 at about 14.10 hours at the lane in Millat Nagar, A. G. Link Road, Sakinaka, Mumbai, the accused used criminal force to the victim girl ‘X’ intending to outrage or knowing it to be likely that he will thereby outrage her modesty and thereby committed an offence under section 354 of the Code?
- Does the prosecution further prove that since a month prior to 14/07/15 and on that day also at the lane in Millat Nagar, in front of BMC School, A. G. Link Road, Sakinaka, Mumbai, the accused followed the victim ‘X and contacted her repeatedly despite a clear indication of disinterest by her and thereby committed an offence punishable under section 354-D of the Code?
- Does the prosecution further prove that on 14/07/15 at about 14.10 hours at the lane in Millat Nagar, A. G. Link Road, Sakinaka, Mumbai, the accused intentionally insulted and thereby gave a provocation to the victim ‘X” intending that such provocation will cause her to break public peace or to commit any other offence and thereby committed an offence punishable u/s.504 of the Code?
- Does the prosecution further prove that on the above stated date, time and place, the accused criminally intimidated the victim ‘X’ by threatening her with injury to her person/reputation with intent to cause alarm to her and thereby committed an offence punishable u/s.506 Part-I of the Code?
- Does the prosecution further prove that since a month prior to 14/07/15 and on that day also at the lane in Millat Nagar, in front of BMC School, A. G. Link Road, Sakinaka, Mumbai, the accused with sexual intent repeatedly or constantly followed the victim who was a child and thereby committed an offence punishable u/s.12 of the POCSO Act?
During her oral arguments, the learned APP Mrs. Mahatekar pointed out that “as no material to falsify the testimony of the victim has been able to be brought forth on the record, there is no reason to disbelieve the same.” She also placed her reliance upon the Bombay High court’s judgment in Shankar Maruti Bamne V. State of Maharashtra 2011. The court held that “a conviction can be based on the testimony of a sole eye witness provided that the evidence is cogent, trustworthy, reliable, etc.” Mrs. Mahatekar further argued that the investigating officer had not recorded the statement of any other witnesses nor had executed the spot panchnama, hence the defects cannot be a ground to acquire the accused.
Ms. Salma Ansari, the learned Advocate of the accused made a reference to the contradictions between the evidence presented by the victim and the accused in their statements. It was to be noted that the victim had clearly stated that on the day of the incident she had gone to the school at about 1.30 p.m. and had returned at about 2.00 to 2.15 p.m. No doubt that in her cross-examination, this witness stated that her school timings were from 7.00 a.m. to 12.00 p.m. Also, the victim stated that she did not know the accused before the incident but knew the accused’s name and address when lodging the report. Based on these dispensaries between her examination in chief and in her cross-examination, implicit reliance cannot be placed on the victim’s testimony. The Judge pointed out that it had been 7 years since the said incident took place.
It was concluded that:
Mrs. Mahateka supports her argument on Point No. 1 ie outrage of modesty committed by the accused by stating that “‘item’ which is a term used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner.”.
As to Point no. 2, there is no evidence to prove that accused had repeatedly contacted her to foster personal interaction.
As to Points 3 and 4, the findings were said to be negative as the term ‘insult’ is not defined under the Code, and though the word ‘item’ to address a girl is insulting in nature and could have the intent to provoke the victim to break public peace but there were not enough facts to prove so.
As to Point no. 5, on 14th July 2015, the victim was 15 and half years old therefore she was a “child” within the meaning of the POCSO Act. In reference to Point No. 1, the acts committed by the accused were done with sexual intent hence this point is affirmative.
The accused is sentenced to suffer Simple Imprisonment under section 354 of the Indian Penal Code for one and half years and to pay a fine of Rs. 500/- and under section 12 of POCSO Act is sentenced to a term of one year and six months along with fine of Rs. 500/- in default of either of the payments he shall undergo further imprisonment of 3 months.
Source: Bar and Bench