Sanchayita Lahkar

The High Court of Bombay at Nagpur, Single Bench of Justice Urmila Joshi-Phalke has allowed a criminal appeal, setting aside the conviction of an accused under Sections 354-A(i) of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. The Court directed the immediate release of the appellant, stating that the prosecution failed to prove the presence of "sexual intent" behind the accused's actions, a necessary component under the relevant statutory provisions. It held that the utterance of the words "I love you" alone, without any suggestive gestures or repeated behaviour, was insufficient to establish sexual harassment or sexual assault as defined under law.

The matter arose from a report lodged on 23 October 2015 by a minor girl, aged 17 years, alleging that while returning home from school around 1:15 PM, she was approached by a young man from the same village, who came on a motorcycle, held her hand, and said "I love you." The accused was identified as a 25-year-old male resident of Sonoli, district Nagpur. The alleged incident took place near the agricultural field while the complainant was accompanied by her cousin.

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Based on the complaint, the police registered offences under Sections 354-A(i) and 354-D(1)(i) of the IPC, and under Section 8 of the POCSO Act. After the investigation, a charge sheet was filed, and the matter proceeded before the Additional Sessions Judge, Nagpur as Special Child Criminal Case No. 2/2016.

The trial court convicted the accused on 18 August 2017, sentencing him to rigorous imprisonment for three years and a fine of Rs. 5,000 under Section 8 of the POCSO Act, with a default sentence of two months simple imprisonment. Aggrieved, the appellant challenged the judgment before the High Court.

The prosecution relied on the testimonies of five witnesses: PW1 (the victim), PW2 (her cousin), PW3 (a bystander), PW4 (her father), and PW5 (the investigating officer). In addition, documentary evidence such as the birth certificate (Exh. 19), FIR (Exh. 14), and other memos and panchanamas were submitted.

The defense raised several issues including the lack of proof of the victim's age, lack of independent witnesses despite the alleged incident occurring in daytime, and the absence of "sexual intent" which is a requisite for constituting offences under Section 354-A IPC and Section 8 of the POCSO Act.

The age of the victim was sought to be established through the birth certificate issued by the Sub Registrar, Nagar Parishad, Katol, which stated the date of birth as 12 May 1999. As the incident occurred on 23 October 2015, the prosecution contended that the victim was a minor at the relevant time. The document was admitted as evidence under Sections 74 and 77 of the Indian Evidence Act, 1872, being a public document.

The victim (PW1) narrated the incident and identified the accused. Her cousin (PW2) corroborated the basic facts. PW3 deposed to having seen the accused stop his motorcycle and hold the girl's hand but certain parts of his testimony were contradicted during cross-examination. PW4, the father, was not an eyewitness but supported the victim's account. PW5 detailed the investigation process.

The Court recorded: "To attract the offence under Section 354-A of the IPC, the prosecution has to establish that there was a physical contact by the accused with a 'sexual intent' or a 'demand' or a 'request' for sexual favour or 'making sexual coloured remarks', which are absent in the present case."

Regarding the applicability of Section 354-D IPC, the Court noted: "There is no evidence to show that the victim was followed by the accused to force personal interaction repeatedly despite a clear indication of disinterest by such a woman."

On the age of the victim, the Court held: "The prosecution has placed on record the birth certificate which is at Exh.19 issued by the Sub Registrar, Nagar Parishad, Katol under the provisions of Sections 12 and 17 of the Registration of Births and Deaths Act, 1969... The Birth Certificate, as such, is issued by the Public Officer and it is a document forming the record of the acts of the Public Officer and therefore the same is a public document within the meaning of the said term as per provisions of Section 74 of the Indian Evidence Act, 1872."

However, it moved on to analyse whether the alleged actions of the accused met the threshold for criminal offences under the IPC and the POCSO Act.

The Court observed: "The expression 'sexual intent' is a question of fact and it is to be determined on the basis of the evidence. Admittedly, 'intention' is inner compartment of mind of that person and has to be determined from surrounding facts and circumstances."

It continued: "If somebody says that he is in love with another person or expresses his feelings itself would not amount to an 'intent' showing some sort of his 'sexual intention'."

Relying on the judgment in Bandu Vitthalrao Borwar vs. State of Maharashtra, the Court explained the terms 'sexual' and 'intent' by quoting definitions from the Webster's Dictionary.

The Court held: "Words expressed 'I Love You' would not by itself amount to 'sexual intent' as contemplated by the legislature. There should be something more which must suggest that the real intention is to drag in the angle of sex, if the words uttered are to be taken as conveying sexual intent."

It concluded that: "The utterances by the accused addressing the victim and heard by PW2 the cousin of the victim are not sufficient to indicate any 'sexual intent' on part of the accused."

Consequently, the Court also found that the requirements under Section 8 of the POCSO Act were not met, stating: "There is no allegation that either the accused with 'sexual intent' touches private part of the victim described under Section 7 of the POCSO Act involving physical contact and, therefore, the offence under Section 8 is also not made out."

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The Court, having examined the evidence and statutory provisions, set aside the conviction. It stated: "The judgment and order dated 18.8.2017 passed by learned Additional Sessions Judge, Nagpur in Special Child Criminal Case No.2/2016 is hereby quashed and set aside."

The Court further directed: "The accused is acquitted of offences for which he was charged and convicted."

Justice Urmila Joshi-Phalke ordered: "The accused be released from the jail forthwith, if he is not required in any other crime."

Additionally, the Court directed: "Fine amount paid, if any, be refused to the accused. Bail bond of the accused stands discharged. Appeal stands disposed of."

Advocates Representing the Parties:

For the Appellant: Mrs. Sonali Khobragade, Advocate

For the Respondent/State: Shri M.J. Khan, Additional Public Prosecutor

Case Title: XXX v. State of Maharashtra

Neutral Citation: 2025: BHC-NAG:6106

Case Number: Criminal Appeal No.471 of 2017

Bench: Justice Urmila Joshi-Phalke