A Special Court under Protection of Children from Sexual Offences (POCSO) Act at Dindoshi in Borivali, Mumbai recommended the appointment of ‘Lady Watchmen’ outside public toilets for the safety of women and children who use the public toilets in the absence of such facilities in their own homes.
On April 18, 2022, a Special Judge HC Shende delivered and pronounced the Judgment in open Court in POCSO Special Case No. 356 0f 2016 (State of Maharashtra v/s. Sunil Balwilsingh @ Balbirsingh Rana), sentencing the convict to five years of ‘Rigorous Imprisonment’ for sexually assaulting a minor 7-year-old girl in public toilet.
The Court found the sex offenders guilty of offences under section 354 (Assault of criminal force to woman with intent to outrage her modesty) and 506 (Punishment for criminal intimidation) of the Indian Penal Code, 1860 and under section 9(m) (Aggravated sexual assault – whoever commits sexual assault on a child below twelve years) read with section 10 (Punishment for aggravated sexual assault) of Protection of Children from Sexual Offences Act, 2012.
The Court had not mentioned the survivor’s and her family members’ names in the Judgment to maintain the confidentiality about their identity as per the Rule 33 (7) of POCSO Act.
Brief about the case
The survivor resides with her maternal aunt at Malad (W) in a chawl. The residents of the chawl use public toilets situated in their area. On September 5, 2016 around 1:00 P.M the survivor went to the public toilet. Within 15 minutes she came back crying and scared.
On her way back she met one of the witnesses who brought her home. When he asked her the reason for crying, she told him that the after she stepped out of the toilet, the sweeper lifted her and kissed her on her lips. She started screaming, asking him to let her go. But the assailant threatened her. After reaching home, the survivor narrated the incident to her aunt.
The aunt traced the assailant and he was also thrashed by locals. Thereafter they took the accused to the Samata Nagar police station and registered a First Information Report (FIR) no. 439/16 under section 354, 506 of IPC and under section 8 of POCSO Act against the accused (sweeper) ‘Sunil Balbirsingh Rana’, age 21 years.
The charges were altered by the POCSO Court as the victim was 7-years-old at the relevant time so by deleting the Charge under section 8 of POCSO Act, charge under section 9(m) read with 10 of POCSO Act was framed.
As reported by Live Law, the prosecution examined six witnesses – the child, her aunt, a neighbour, local resident and cops — to seek conviction of the accused.
Court’s Observation
The Court observed from the circumstances of the case, “There is a need to have lady watchman in a toilet or kids should accompany by their near ones just to avoid the kids being getting harassed by any assailant in the said place in such tender age as it would leave a deep scar on their lives which they would carry forever throughout their lives. It is very traumatic and also causing mental harassment to the kids and such incidents are increasing rapidly so the parents must take care of it while sending their kids to the public toilet to avoid further harm.”
The Court further remarked about the open space in the city, “Mumbai being a metro city has the biggest slums with small houses and less space to walk through it. These houses are not bigger than the size of match box as we usually observe and hence, the people here use public toilet made by the government,” adding to it that “these toilets are less in number and not close to everyone’s house so when small kids go to use these toilets, some trustworthy person shall accompany them.”
The Court on observing that the accused has failed to put his case of ‘mistaken identity’, stated, “No theory of enmity in between the family of the informant and the accused was brought on record by the defence. No case of false implication was put up by the defence. No evidence in defence to rebut the presumption available to the victim u/s.29 of POCSO Act put up by the defence.”
The Court laid various questions based upon the charges framed against the accused, evidence on record, the statement under section 313 of Criminal Procedure Code (Power to examine the accused) and the submissions made by the Learned Counsel of both sides.
They were as follows:
Was the victim minor at the time of incident as per the provision of POCSO Act?
The testimony of the survivor about her date of birth is corroborated by the birth certificate produced in the Court that her date of birth is April 23, 2010. The Court in these circumstances stated, “The birth certificate (Exh.23) is stating her date of birth 23/04/10. In these circumstances, this Court has no hesitation to accept that the birth date of the victim is 23/04/10 and on the date of the incident i.e. on 05/09/16 the victim girl was aged about 7 years i.e. below 12 years of age and a child as defined u/s.2 (d) of POCSO Act.”
The Court relied upon the Hon’ble Bombay High Court’s Judgment dated September 3, 2019 in the Criminal Appeal No.1558/2018 (Shivara @ Balu Khandu Jagtap vs. State of Maharashtra), in which the Court held that the birth certificate issued by the statutorily appointed competent authority is relevant and admissible. The same is the public document and it constitutes primary evidence, proof of contents of public document can be had by production thereby as per Section 77 of the Indian Evidence Act, therefore, no former proof of birth certificate issued of competent authority under the provisions of Registration of Births and Deaths Acts, 1979 of rules framed there under is required.
Has the act of the accused outraged the modesty of the said victim?
The Court in this case had observed, “Needless to say that what constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of a woman is very relevant though its absence is not always decisive. Modesty in Section 354 of IPC is an attribute associated with female human being a class though she was of any age.”
For this the Court relied upon the case of State of Punjab v/s. Major Singh [AIR 1967 SC 63], in which the Supreme Court had explained what constitutes an offence under section 354 of IPC. As per the Hon’ble Supreme Court, intention is not the sole criteria of the offence punishable u/s.354 of IPC and it can be committed by a person assaulting or using criminal force to any woman. If he knows that by such an act the modesty of a woman is likely to be affected, knowledge and intention are essentially things of mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be called out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her evidence should receive the same weight.
Why should this Court rely on the sole testimony of the victim girl who is only 7 years old?
The Court heavily relied upon the victim’s testimony and stated, “Cumulative reading of the aforesaid would prove beyond shadow of doubt that it was the accused who had committed sexual assault on the minor victim aged 7 years at the relevant time. He outraged the modesty of the victim girl and when she screamed, he gave threats to throw her out of the window. It reflects the intention of the accused to cause harm to the victim.”
The Court noted in this issue, “Now it is settled position of law that conviction to accused can be founded on sole testimony of the victim. It needs no corroboration unless it is unreliable, having material discrepancies in it.”
For this the Court relied upon the case of State of Maharashtra V. Chandraprakash Kewalchand Jain, in which it was held that:
“We think it proper, having regard to the increase in the number of sexviolation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.”
On the request made by the accused and his advocates of releasing him on admonition or bond of good behaviour, the Court stated, “The person who is brought in the Court with such allegation of sexually assaulting to the minor if leniently dealt with by the Court, then it would be an injustice to the victim, it is traversity of justice. It will give wrong message to the society at large and may boost the fear prevailing in the mind of the victim of sexual assault that the courts are also not recognizing their pain so the submission made by the defence to show leniency to the accused is out of consideration according to this Court.”
On the submission made by Advocate for the accused for showing leniency while sentencing as the accused is a poor and working person, the Court stated, “The measure of punishment in cases of child abuse cannot be depended upon the special status of the accused or the victim. It must depend on the conduct of the accused, age of the victim and gravity of criminal act. Protection of society and deterring criminal is the avowed object of criminal law system. This required to be achieved by imposing an appropriate sentence.”
Court’s Judgment
On April 18 2022, Special Judge H.C. Shende under POCSO Act, sitting in Sessions Court, Dindoshi, convicted the accused for the offences punishable under sections 354 and 506 of Indian Penal Code, 1860 and under section 9(m) read with section 10 of Protection of Children from Sexual Offences Act, 2012.
The Judge sentenced the convict as stated in Order:
“The accused Sunil Balwilsingh @ Balbirsingh Rana is punished u/s.354 of Indian Penal Code, 1860 and is sentenced to suffer Rigorous Imprisonment for five years and to pay fine of Rs.7,000/ (Rupees Seven Thousand Only), in default of payment of fine, he shall suffer Rigorous Imprisonment for six months.
The accused Sunil Balwilsingh @ Balbirsingh Rana is punished u/s.506 of Indian Penal Code, 1860 and is sentenced to suffer Rigorous Imprisonment for two years.
The accused Sunil Balwilsingh @ Balbirsingh Rana is punished u/s.9(m) r/w.10 of Protection of Children from Sexual Offences Act, 2012 and is sentenced to suffer Rigorous Imprisonment for five years and to pay fine of Rs.7,000/ (Rupees Seven Thousand Only), in default of payment of fine, he shall suffer Rigorous Imprisonment for six months.”
He further stated that all the sentences must run concurrently.
He further directed, “Accused is on bail. He be taken in custody forthwith. His Bail Bond, if any, stands cancelled. Cash bail, if any, be forfeited.”
The entire Judgment may be read here:
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