Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIGH COURT OF BOMBAY
PUSHPA V. GANEDIWALA, J
Satish s/o Bandu Ragde – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 161 of 2020 | Special Child Protection Case No. 28 of 2017

Advocates:
For the Appellants/Petitioners: Shri Sk. Sabahat Ullah
For the Respondents: Shri M.J. Khan

The court distinguished between 'sexual assault' and other offenses, concluding that pressing a child's breast does not meet the POCSO definition but falls under IPC for outraging modesty.

Headnote:(A) Indian Penal Code - Sections 354, 363, and 342 - Protection of Children from Sexual Offences Act, 2012 - Section 8 - Conviction for sexual assault and related offences - Appellant convicted for minor offenses after the court found insufficient evidence for sexual assault - Definitions of relevant statutory provisions were analyzed - Act of pressing breast noted, however, did not meet definition of sexual assault under POCSO - Penal actions affirmed against proper interpretation of acts and definitions. (Paras 16, 17, 21, 27)

(B) Evidence Act - Section 6 - Testimony and evidence rules - The issue of hearsay examined regarding the informant's admissibility to substantiate the claim based on res gestae principles as part of the transaction sequence. (Paras 22, 23)

Facts of the case:
The appellant was charged following a complaint by the mother of a 12-year-old girl, alleging he attempted to molest her daughter while luring her into his home. Charges were brought under IPC and POCSO Act for various offenses, with the appellant convicted on lesser charges in trial court.

Findings of Court:
The definitions regarding sexual assault were pivotal, as the court highlighted that while the appellant's actions constituted a crime, they did not constitute sexual assault under the POCSO Act as no penetration occurred. The appellant's conviction was modified accordingly.

Issues: The main issues were about whether the acts amounted to 'sexual assault' under the POCSO Act and interpretations of witness testimony.

Ratio Decidendi: The court concluded that the offense fell under IPC Section 354 for use of criminal force against a woman with intent to outrage her modesty, rather than a sexual assault under POCSO. The severity of punishment in relation to the crime's nature was also a factor assessed.

Result: Convicted on lesser charges under IPC; appeal succeeded partially.

Table of Content
1. appellant's conviction and sentences for various offences. (Para 2)
2. details of the incident and witness testimonies supporting prosecution. (Para 4 , 12 , 13)
3. acts of the appellant described as various offenses leading to charges. (Para 6)
4. discussion on whether the acts constituted sexual assault under relevant law. (Para 15 , 17 , 21)
5. assessment of proportionality and seriousness of the crimes. (Para 18 , 20)
6. court's view on the admissibility of witness testimony under evidence law. (Para 22 , 23)
7. court's interpretation of definitions related to sexual assault and their application to the case. (Para 24)
8. final ruling and outcome of the appeal. (Para 27)

2. This is an appeal against the judgment and order dated 05.02.2020 in Special Child Protection Case No. 28 of 2017 passed by the Extra Joint Additional Sessions Judge, Nagpur, by which the appellant is convicted for the offence punishable under Sections 354 , 363 and 342 of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act , 2012, (hereinafter referred to as POCSO Act), in Crime No. 405 of 2016 registered at Police Station Gittikhadan, Nagpur, District – Nagpur.

3. For the offence punishable under Section 8 of the POCSO Act read with Section 354 of the IPC, the appellant is sentenced to suffer R.I. for three years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month.

For the offence punishable under Section 363 of the IPC, the appellant is sentenced to suffer R.I. for two years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month.

For the offence punishable under Section 342 of the IPC, the appellant is sentenced to suffer R.I. for six months and to pay fine of Rs. 500/-, in default of fine, to suffer R.I. for one month.

All the substantive jail sentences were directed to run concurrently. The appellant is given set off for the period of sentence, he has already undergone.

4. The prosecution story, in brief, is as under :

i) On 14.12.2016, the informant (mother of the prosecutrix) (PW-1) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant / accused vide Crime No. 405 of 2016 (Exh. 1) for the offence punishable under Sections 354 , 363 and 342 of the IPC and under Section 8 of the POCSO Act.

5. The police started investigation. After investigation, charge-sheet came to be filed in the Special Court, Nagpur, against the appellant.

6. The Special Court framed charge (Exh. 11) against the appellant / accused under Sections 361, 354, 342 and 309 of the IPC and under Section 8 of the POCSO Act. The said charge was read over and explained to the appellant / accused, to which he denied. His plea was recorded.

7. In order to establish the guilt against the appellant / accused, the prosecution examined in all five witnesses and also brought on record the relevant documents.

PW-1 is the informant - mother of the prosecutrix.

PW-2 is the prosecutrix.

PW-3 is the prosecution witness (neighbour).

PW-4 is a WPSI – Kinake.

PW-5 is the PSI who registered crime against the appellant / accused on the report of the informant.

8. The Special Court recorded the statement of the appellant / accused under Section 313 of the Code of Criminal Procedure.

9. After hearing both the sides, the learned Court found the appellant / accused guilty of the crime registered against him and passed the judgment of conviction and sentenced him as above. The learned Special Court, however, acquitted the appellant / accused of the offence punishable under Section 309 of the

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HIGH COURT OF BOMBAYPUSHPA V. GANEDIWALA, JSatish s/o Bandu Ragde – AppellantVersusThe State of Maharashtra – RespondentCriminal Appeal No. 161 of 2020 | Special Child Protection Case No. 28 of 2017

The court distinguished between 'sexual assault' and other offenses, concluding that pressing a child's breast does not meet the POCSO definition but falls under IPC for outraging modesty.

HIGH COURT OF BOMBAY
PUSHPA V. GANEDIWALA, J
Satish s/o Bandu Ragde – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 161 of 2020 | Special Child Protection Case No. 28 of 2017