The definition of “private part” has to be interpreted as per the social context, a Special Court dealing with cases pertaining to the Protection of Children from Sexual Offences (POCSO) Act said convicting a person for committing sexual assault under Sections 354, 354A of the Indian Penal Code and Section 10 of the POCSO Act. (State of Maharashtra v. Sahar Ali Shaikh).
The designated POCSO judge MA Baraliya had to consider whether the act of “touching the bums” of the victim by the accused would constitute an offence under Section 7 of the POCSO Act.
Clarifying that “the term private part is to be interpreted into the context what is meant by it in our society,” the Court held that Google’s definition of not including bum in private part may not be an acceptable interpretation as far as Indians are concerned.
“whoever, with sexual intent touches the vagina, penis, anus or breast of the child …or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
The Court noted that the accused had not touched either the vagina, breast or anus of the victim. However, it ruled that touching the posterior of the victim cannot be said to be without sexual intention.
The accused refuted the allegations made against him by stating that the girl’s father had received a call from his mother stating that someone had teased his daughter.
“There is much difference between teasing and touching. Also, bum is not a private part as alleged by the victim,” the defence argued.
The prosecution replied that there was no reason to disbelieve the victim and her father who had immediately approached the police.
“The victim who was 10 years old at the material time felt insulted and scared too much by the incident that she disclosed it to her mother immediately,” the prosecution submitted.
The Court noted that the conduct of the father in rushing home immediately after he received the call itself would show that something more than “teasing” had happened with his daughter.
“It was telephonic conversation, so it is but natural that wife instead giving details, on phone, simply said that, their daughter had been teased. Avoiding to give details on phone does not mean that daughter was teased only without touching,” the order noted.
Relying upon the victim’s statements made to her parents and to the police, the Court noted that a 10-year-old may have expressed that her ‘private part’ was touched, but her language expressed her ordeal, “so there cannot be any confusion that she was not only teased but had been touched inappropriately by the accused.”
The Court also found from the past conduct of the accused that he had the sexual intention to commit the offence against the victim.
“Accused and other three were at laughing her, when she been to buy bread. Second time when she was going still they were laughing at her. Past conduct of accused laughing at her and then touching her manifests that it was all with sexual intention, to grab the chance. Sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from the attending circumstances of the case,” the order read.
While holding so, the Court sentenced the accused to five years of rigorous imprisonment and payment of fine of Rs. 10,000. In default of payment of fine, he will be sentenced to two additional months in jail.
The Court also cancelled the bail granted to the accused and directed that he be taken into custody.