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Judgment
Bhaskar Raj Pradhan, J
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.
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.
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.
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.
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.
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.
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 support his contention he relied upon the judgment of the Division Bench of this
Court in re: Shiva Kala Subba v. State of Sikkim 2019 SCC OnLine Sikk 51. Sexual intent is a vital ingredient of the offence under Section 11 of the
POCSO Act. In re: Shiva Kala Subba (supra) this Court held that there was no evidence of sexual intent on the part of the Appellant (a woman)
therein but only of commission of the offence of hurt upon the victim.
The learned Special Judge has not discussed if the prosecution has been able to prove sexual intent. Sexual intent is a state of mind and therefore,
the culpable mental state of the accused. Section 30 of the POCSO Act provides as under:
“30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part
of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he
had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance of probability.
Explanation.-In this section, “culpable mental state†includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.â€
This was a prosecution for an offence under Section 11 of the POCSO Act and therefore Section 30 of the POCSO Act would be attracted.
A composite reading of Section 11 and Section 30 of the POCSO Act therefore, makes it manifest that in a prosecution for sexual harassment that
requires the establishment of sexual intent also the Special Court shall presume its existence if the commission of the act constituting sexual
harassment, save the sexual intent, has been proved by the prosecution. However, it shall be a defence for the accused to prove the fact that he had
no such sexual intent with respect to the act charged as an offence in that prosecution. The fact that he had no such sexual intent as alleged is
however, required to be proved beyond reasonable doubt and not merely when its existence is established by preponderance of probability.
The presumption of law against the Appellant cannot be discharged by offering an explanation which may be reasonable and probable alone. The
explanation must also be true. Unless the explanation is supported by proof the presumption of law created by Section 30 of the POCSO Act cannot
be held to be rebutted. The words “prove the fact†in Section 30 of the POCSO Act should not be required to mean anything beyond what
Section 3 of the Indian Evidence Act, 1872 interprets the word “proved†to signify. A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists.
The rebuttable presumption of law created by Section 30 of the POCSO Act puts the onus upon the Appellant to rebut the presumption. When the
prosecution has successfully established the fact that the Appellant had exhibited part of his body i.e. his penis and buttocks to P.W.1 and P.W.2 with
the intention that it is seen by them the Special Court is required to draw a presumption that the Appellant had sexual intent in doing so. The Special
Court has no choice in the matter thereafter. However, this presumption cannot be understood to mean that the burden of proof upon the prosecution
has been done away with by Section 30 of the POCSO Act. The burden of proving the facts constituting sexual harassment rest on the prosecution
who has asserted it. The presumption started to operate only when the prosecution had established that the Appellant had exhibited parts of his body
to P.W.1 and P.W.2 with the intention that they saw it.
The prosecution has been, as held above, able to prove the second ingredient of the offence of sexual harassment save the sexual intent i.e. the
culpable mental state of the Appellant. On the application of Section 30 of the POCSO Act the Special Court was required to presume that the act
was committed by the Appellant with sexual intent. To rebut the presumption thus raised by the application of Section 30 of the POCSO Act the
defence examined the Appellant (D.W.1). He deposed that on the relevant day he woke up late and as he was in a hurry, quickly took a bath and
came to his bedroom for putting on his clothes. He stated that the window of the room was open, however, the curtains of the window was drawn. He
thereafter put on his clothes and left his house for his duty. He also deposed that the weather was windy on the relevant day. He asserted that his two
sons aged 32 years and 25 years were also at home. He pleaded his innocence. He did not deny his presence in the bedroom from where he was seen
by P.W.1 and P.W.2 on the relevant day. He deposed that he had enmity with his landlord (P.W.12) regarding the house rent as he tried to increase it
many times but he had refused. However, earlier when the landlord (P.W.12) was examined no suggestion was made regarding such enmity. The
defence was not only false but also absurd and obviously an afterthought. It is absurd to even presume that the landlord (P.W.12) would be able to
influence his neighbours and especially their children-P.W.1 aged seven years and P.W.2-aged five years to falsely depose against the Appellant
about displaying his private parts to them. The learned Special Judge has rightly concluded that there was no evidence to support this defence. The
defence did not examine the Appellant’s sons. The Appellant’s wife (P.W.9) was tendered by the prosecution and cross-examined by the
Appellant. During such cross-examination she admitted that on the relevant day she was at Kalimpong. She also deposed that after being called to
Gangtok she reached home and saw her husband there. She did not depose that their sons were at home on the relevant day. P.W.8 who had deposed
earlier stated that on the date of the incident she was present at her residence and the family members of the Appellant were not present at his
residence as they had gone out of station. The defence did not think it fit to deny this assertion by P.W.8 that the family members of the Appellant
were not present at his residence on the relevant day. No evidence whatsoever is available to corroborate his defence that in fact he had taken a bath
and come to the bedroom for putting on his clothes and he had not committed the offence. The question therefore, is whether the deposition of the
Appellant establishes beyond reasonable doubt the fact that in fact he had innocently come out naked after his bath to his bedroom for putting on his
clothes and that he had no sexual intent.
The Appellant had been examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) one day before he was examined as
defence witness. In such examination he had specifically denied his presence and stated that on the relevant day he was not at home. The
examination of an accused under Section 313 Cr.P.C. enables the accused to personally explain the circumstances against him. The said provision
embodies the fundamental principles of Audi Alteram Partem Rule. Strictly speaking the explanation given by an accused during such examination
cannot be considered as evidence. The statement of an accused which is not taken under oath can however be considered in the trial. The Court
would be entitled to draw an inference including such adverse inference against the accused as may be permissible in accordance with law on such
consideration. The denial of his presence in his house on the relevant day during his examination under Section 313 Cr.P.C. and admitting his presence
during his deposition as his own defence witness does raise a presumption that his defence was false. The prosecution evidence also establishes that
the Appellant’s deposition about his sons being present on the relevant day was also a false statement. In the circumstances the Appellant has
failed to prove the fact necessary to rebut the presumption of his culpable mental state i.e. sexual intent when he committed the act as deposed by
P.W.1 and P.W.2. A presumption of law cannot be discharged by a mere explanation as sought to have been done by the Appellant by offering
himself as a witness. It is necessary to prove that the explanation is true. The Appellant failed to do so. In fact it is unequivocal that his explanation is
false.
The next contention raised by Mr. Ajay Rathi was that P.W.1 and P.W.2 had been tutored. He drew the attention of this Court to the cross-
examination of the said two witnesses. P.W.1 admitted in cross-examination that she had come along with her mother. She admitted that the previous
evening and the morning of the day of her examination her mother told her what to depose before the Court. She also admitted that her mother told
her to identify the accused in the Court and gave the description of the Court. P.W.2 admitted in cross-examination that her friend told her about the
proceedings in Court when she came back home. Neither P.W.1 nor P.W.2 admitted that they were tutored. In spite of their tender age the defence
did not dare to put any question to them directly suggesting that they were tutored. It was natural that P.W.1 was accompanied by her mother and
P.W.2 was accompanied by her parents due to their tender age. P.W.1’s admission that she was told by her mother what to depose would not
ipso facto lead to a conclusion that the mother had told her to implicate the Appellant in a false case. There was no reason for the mother to do so.
Similarly, the admission made by P.W.2 in cross-examination that her friend told her about the proceedings in the Court after she came back home
falls short of evidence required to conclude that the said witness had been tutored. No evidence whatsoever is available in the records to even
remotely suggest that there was any reason for the parents of P.W.1 and P.W.2 to falsely implicate the Appellant and subject the child witnesses to
the trauma of secondary victimisation. Reading the testimonies of P.W.1 and P.W.2 in its entirety it can be safely held that their innocent admission,
after being led to say so by the defence, that they saw the Appellant accidentally, could not lead to the inevitable conclusion that the act committed by
the Appellant was innocent and accidental.
The issue, half heartedly raised, that the victims had not been called upon by the investigating agency to identify the Appellant in a test
identification parade would also be of no consequence in as much as both P.W.1 and P.W.2 have categorically identified the Appellant in Court.
Mr Ajay Rathi relied upon Judgment of a learned Single Bench of the Punjab and Haryana High Court in re: Dharamvir v. State of Punjab 2018
R.C.R. (Cril) 707 (P&H) and submitted that the evidence of a child must be carefully scrutinised. The submission that the evidence of a child must be
carefully scrutinised is correct. Both P.W.1 and P.W.2 were of tender age. If their evidence stands the test of scrutiny it is enough to bring home the
charge without any corroboration. This is a case in which there are two victims i.e. P.W.1 and P.W.2 who witnessed the act of the Appellant. Their
depositions tested through cross-examination by the defence have withstood that scrutiny. Their depositions also corroborate each other. The lodging
of the First Information Report (FIR) on hearing about the incident has been proved by P.W.3-the paternal uncle of P.W.1. The circumstances leading
to the lodging of the FIR has been proved by the evidence of P.W.4. P.W.5 although uncertain that it was in fact the Appellant who she saw
masturbating near the window of the Appellant’s residence, was certain that it was the Appellant who lived there. Even P.W.6 saw one individual
standing naked with his back visible. However, she could not be sure that it was the Appellant who she saw that day. The evidence of P.W.13 who
also identified the Appellant establishes that the Appellant had indulged in similar activity sometime ago. After the incident the mother of one of the
victims and the father of another had approached the Appellant’s landlord (P.W.12) and complained about his act. The landlord (P.W.12)
subsequently lodged a report (exhibit-8) at the Sadar Police Station. In the report proved by the landlord (P.W.12) it has been stated that he had
received a complaint from his neighbours about the Appellant exposing his nude body and making obscene gestures from the window of his house to
the neighbours’ kids playing outside. In the report it was also alleged that similar incidents have happened in the past. The report also named
P.W.3, P.W.6, Ritika Chettri and P.W.5 as the persons from whom the landlord (P.W.12) had received the complaint. All of them except Ritika
Chettri have been examined by the prosecution. These evidences led by the prosecution corroborate the depositions of P.W.1 and P.W.2. Therefore,
even after meticulous scrutiny of the evidence of P.W.1 and P.W.2 it is clear that their evidence were truthful, without any embellishment and
reliable.
The learned Special Judge has examined the evidence led by the prosecution as well as the defence. The learned Special judge found sufficient
evidence to hold that P.W.1 and P.W.2 were minors at the relevant time which was also not disputed by the defence. It was held that there was no
reason to disbelieve their testimonies which were reliable and trustworthy and duly corroborated by the evidence of P.W.5. The learned Special Judge
examined the provision of Section 11 of the POCSO Act and came to the conclusion that the prosecution had been successful in proving the case
against the Appellant beyond any reasonable doubt. This Court is of the view that this is not a fit case for interference and the judgment of conviction
must be upheld. The learned Special Judge has convicted the Appellant to simple imprisonment for a period of one year and to pay a fine of Rs.5000/-.
Section 12 of the POCSO Act provides that the imprisonment may extend to three years and may also be liable to pay a fine. Although the learned
Special Judge had come to the conclusion that it was the Appellant who had committed sexual harassment against P.W.1 and P.W.2 considering that
the Appellant was 59 years of age, had a wife, two sons and a daughter, the learned Special Judge deemed it appropriate to sentence the Appellant
with simple imprisonment for a term of one year only and with a fine of Rs.5000/-. This Court is of the view that the sentence imposed was
appropriate in the facts and circumstances put forth and may not be interfered with. Similarly, the direction under the Sikkim Compensation to Victims
or his Dependents Schemes, 2011 is also upheld.
The appeal fails. The impugned judgment and order on sentence both dated 27.11.2017 are upheld. The Appellant is on bail. He shall surrender
before the Court of learned Special Judge, East Sikkim at Gangtok on 18.07.2019 to undergo the sentence.
P.W.4 has deposed that when she looked towards the residence of the Appellant as pointed out by the lady who told her that he was masturbating
and displaying his private parts to P.W.1 and P.W.2 she saw him standing by his window “grinning†at her. P.W.13 in cross-examination admitted
that the Appellant seems to be “weirdâ€. Under the NALSA (Legal Services to the Mentally Ill and Mentally Disabled Persons) Scheme, 2015 the
Sikkim State Legal Services Authority (SSLSA) is required to, in coordination with the Sikkim State Mental Health Authority, constitute a team of
psychiatrists/psychologists/counsellors to visit the jails and assess the state of mental health of the inmates in the jails. The SSLSA is thus directed to
ensure that the team so constituted assesses the state of mental health of the Appellant and initiate corrective measures, if necessary, to facilitate his
treatment by psychologist or psychiatrist during the period of sentence. The jail authorities shall maintain record of such assessment and treatment, if
any, and make such records available to the SSLSA which shall monitor the progress.
A copy of the judgment is directed to be sent forthwith to the Court of the learned Special Judge, East Sikkim at Gangtok, the SSLSA and to the
Assistant Superintendent of Police, Prisons, State Central Jail, Rongyek, East Sikkim for compliance.
Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsel for the parties upon compliance of all formalities.