The judgment establishes the importance of scrutinizing child witnesses' evidence, the burden of proof on the accused to rebut the presumption of sexual intent, and the application of Section 30 of the POCSO Act in cases of sexual harassment against minors.

JUDGMENT :

Bhaskar Raj Pradhan, J

1. The appeal assails the judgment of conviction by the learned Special Judge dated 27.11.2017 for sexual harassment as defined under Section 11(i) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for which the Appellant has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5000/- under Section 12 thereof.

2. The ingredients of the offence of sexual harassment as defined under Section 11 (i) of the POCSO Act, to the extent of the indictment against the Appellant, are:

(i) Sexual intent;

(ii) Making any gesture or exhibiting any object or part of body with the intention that such gesture or object or part of body shall be seen by the child.

3. Heard Mr. Ajay Rathi the learned Counsel for the Appellant and Ms. Pollin Rai the learned Assistant Public Prosecutor for the State. Mr. Ajay Rathi submits that the prosecution had failed to bring home the charge by leading cogent evidence. Per contra Ms. Pollin Rai submits that the ingredient of Section 11(i) of the POCSO Act for which the Appellant was indicted has been fully satisfied by the deposition of P.W.1 and P.W.2 and their evidence have stood firm unable to be demolished by the defence.

4. P.W.1 has specifically deposed that at the relevant time when she was playing with her friend near their house she saw the Appellant standing by the window inside his house. The Appellant opened his clothes and displayed his private parts to them. He fondled his private part with his hands and showed it to them. She and her friend felt embarrassed on seeing the Appellant naked and displaying his private part.

5. P.W.2 also deposed that the Appellant was standing near the window of his house on the relevant day. The window was open and so was the curtain. She was playing with her friend, i.e. P.W.1. P.W.1 showed her the Appellant who was naked and standing by the window of his room. On seeing them the Appellant showed them his genitals and his buttocks. He also started shaking his torso on seeing them.

6. The evidence of P.W.1 and P.W.2 reflects that the Appellant displayed his private parts to them with the intention that they saw it. P.W.1 aged seven years and P.W.2 five years were both examined by the Special Court. Having put several questions the learned Special Judge came to the conclusion that they were not prevented from understanding the questions put to them. They were found competent to testify despite their tender age. Both P.W.1 and P.W.2 have unflinchingly identified the Appellant as the one who committed the alleged act. There is no uncertainty about his identification by them. This Court has perused the cross-examinations of both P.W.1 and P.W.2. Specifically the portions highlighted by Mr. Ajay Rathi wherein they have admitted having seen the Appellant accidentally. It was his contention that due to this admission the question of sexual intent would not arise. P.W.1 and P.W.2 have no doubt admitted that they saw the Appellant accidentally. However, the mere fact that P.W.1 and P.W.2 saw the Appellant accidentally would not demolish their evidence that the Appellant had showed his private parts to them in the manner they described. This Court has no hesitation to uphold the finding of the learned Special Judge that it was the Appellant and the Appellant alone who had committed the alleged act. The depositions of P.W.1 and P.W.2 established the second ingredient of the offence of sexual harassment i.e. exhibiting part of his body with the intention that the part of his body be seen by P.W.1 and P.W.2. The question which however, must necessarily be answered is whether the said act of displaying his private parts to P.W.1 and P.W.2 by the Appellant was with sexual intent.

7. Mr. Ajay Rathi submitted that the evidence put forth by the prosecution does not reflect sexual intent on the part of the Appellant which is a vital ingredient of the offence under section 11(i) of the POCSO Act. To s