'Hauling a Girl's Dupatta Forcefully is not a Sexual Assault under POCSO Act'- Calcutta High Court

The accused also allegedly threatened the girl that if his proposal was not accepted, he would through acid on her.
POCSO ACTSource: Google, Image by- Deccan Herald

It is not a crime to hold any girl’s hand forcefully, that is, now any boy can haul a girl’s scarf and hold her hand without the consent of the girl. We are not saying this, this is what the Calcutta High Court says. The Calcutta High Court said that this act does not come under sexual assault under the POCSO Act.

The accused threatened the girl of throwing acid on her

The incident is from 2017. A girl child was returning from school and her dupatta was pulled on the way. Her hand was held forcefully. Offered to get married. The accused also allegedly threatened the girl that if his proposal was not accepted, he would through acid on her.

The trial court had convicted the accused under the POCSO Act. But the Calcutta High Court has said that it does not fall under the category of sexual harassment under the POCSO Act.

Calcutta High Court
Calcutta High CourtSource: Google, Image by- The Leaflet

The High Court has held that pulling a woman's dupatta, pulling the victim's hand, and proposing marriage to her does not come under the definition of 'sexual assault' or 'sexual harassment' under the POCSO Act.

The bench of Justice Vivek Choudhary also emphasized the role of the trial court in the evaluation of the evidence on record, saying, "It cannot be overemphasized in its true spirit as the trial court is the basic structure of the administration of justice. If there is any base, then the superstructure will not only collapse, but it will deny justice to an innocent person.”

The victim had alleged that when the victim girl was returning from school in August 2017, the accused pulled her dupatta and proposed marriage to her. Along with this, he also threatened that if the victim girl refused to accept his offer, he would throw acid on her body.

Intention of sexual assault

When the matter was heard in the trial court, the court appreciated the evidence and said that the method of the accused to drag the victim's dupatta and insist her to marry her was done with the intention of sexual assault.

The Additional Sessions Judge also held that the accused sexually assaulted her by dragging her hand and made unsolicited and explicit sexual offers for marriage. The Trial Judge convicted the accused of offenses under sections 8 and 12 of the POCSO Act, sections 354, 354B, 506, and 509 of the Indian Penal Code.

Flaws in the victim's testimony

Reviewing the evidence, the Calcutta High Court found that there were flaws in the victim's testimony. According to the court, the complainant's uncle did not mention in the FIR that the accused dragged the victim's hand. But 10 days later, in her statement recorded under section 164 of CRPC, the victim told for the first time that the accused had pulled her hand.

On finding the flaws in the statement of the victim, the High Court took up the matter differently and said, “considering that the appellant has committed the alleged act of pulling the dupatta and pulling the hand of the victim and has offered to marry her." Such an act does not fall within the definition of sexual harassment or sexual assault.

Therefore, he may be liable to an offense under section 354 A as well as section 506 of the Indian Penal Code. The Court further said, "Sections 354, 354 B and 509 of the Indian Penal Code, the appellant cannot be held guilty of the charge, the court also held the appellant not guilty of the charge under sections 8 and 12 of the POCSO Act”.

'Skin to Skin' touch would not be considered sexual abuse

Significantly, recently the Bombay High Court had said in one of its orders that touching the breast of a minor without coming in contact with 'skin to skin' would not be considered sexual abuse under the POCSO Act but molesting under section 354 of the IPC shall be considered an offense. However, later the Supreme Court overturned the Bombay High Court's decision and said that skin-to-skin touch is not mandatory in the POCSO Act.

No Sexual Harassment without Skin-to-Skin contact, SC set aside the Controversial Order of Bombay HC 

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