IMPORTANT POINT
Sexual harassment of girl child – Alleged expression [xxx I Love You] by accused alone would not constitute “sexual assault” as provided under Section 7 of POCSO Act.

JUDGMENT (CAV)

This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”), questioning the legality and propriety of the judgment dated 27.05.2022 passed by the Court of Special Judge (Under POCSO Act), Dhamtari (C.G.) in Special Criminal Case (POCSO) No.24/2019, whereby, the respondent/accused has been acquitted with regard to the offence punishable under Sections 354-D, 509 of IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) and under Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the SC/ST Act”).

2. Briefly stated the case of the prosecution is that on 14.10.2019, a written report (Ex.P-7) was lodged by the prosecutrix, a 15 years old, before the Police Station Kurud, District Dhamtari, alleging inter alia, that on the said fateful day, around 4:15 pm, when she was returning home from the School along with her friends, namely, Heena (PW-1) and Kajal (PW-2), the respondent/accused, came and shouted while expressing his love, saying “xxx I Love You” (xxx is denoting the name of prosecutrix). It is alleged further that previously also, she was harassed and misbehaved by him, for which, he was reprimanded and made him understood by the Teachers, but he did not stop and continuously harassing her.

3. Based upon the aforesaid complaint, an FIR (Ex.P-6) was registered by the concerned Police Station against him for the offence punishable under Sections 354-D and 509 of IPC read with Section 8 of the POCSO Act and Section 3(2)(va) of the SC/ST Act. Her statement under Section 164 Cr.P.C. was recorded on 24.10.2019 and after completion of investigation, the charge-sheet was submitted before the Special Judge (SC/ST Act), Dhamtari in connection with Crime No.500/2019 against the respondent for the offence punishable under Sections 354-D and 509 of IPC read with Sections 8 and 12 of the POCSO Act and Section 3(2)(va) of the SC/ST Act, where, the charge has been framed under Sections 354-D and 509 of IPC read with Section 8 of the POCSO Act and Section 3(2)(va) of the SC/ST Act, which was denied by him and claimed to be tried.

4. The trial Court, after considering the evidence led by the prosecution, held that the respondent is not involved in connection with the alleged crime and, accordingly, he was acquitted from the commission of the alleged offence and, being aggrieved, the instant appeal has been preferred.

5. Mr. Ratan Pusty, learned counsel appearing for the appellant/State submits that the finding recorded by the trial Court acquitting the respondent from the commission of the alleged crime is, apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecutrix, her friends and parents of her, have not been scanned in its proper manner and erred further in disbelieving her ‘birth certificate’, seized vide Ex.P-3 from her father, wherein, her date of birth was shown to be ‘29.11.2004’. While inviting attention towards the statement of the prosecutrix and her friends, it is contended further that a bare perusal of their testimonies would reveal the fact that she was stalking not only on the date of the alleged incident, but previously also, which clearly establishes the offence punishable under Sections 354-D and 509 of IPC and, contended further that the respondent, while knowing fully of her caste that she belongs to the ‘Scheduled Caste community’, has committed the alleged offence, but the trial Court has utterly failed to give its finding on this “particular issue”. The judgment under appeal is, therefore, liable to be quashed.

6. On the other hand, Mr. Shobhit Koshta, learned counsel appearing for the respondent, while referring to the provision prescribed under Section 354-A of IPC and in absence of disinterest shown by the prosec