Rubbing Thigh Shows Sexual Intention: Madhya Pradesh HC

The Madhya Pradesh High Court recently held that the act of the appellant taking the prosecutrix into his closed room and rubbing in her thigh was sufficient to gather his sexual intention.

Bench comprising Justice Prem Narayan Singh heard a criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 filed by the appellant being aggrieved by the judgment passed by the Sessions Judge whereby the appellant had been convicted for the offence punishable under Section 363 of the Indian Penal Code, 1860 and Section 9(M)/10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to undergo 5 years R.I. and 5 years R.I. with fine of Rs.1,000/- and Rs.2,000/-.

The counsel for the appellant submitted that the impugned judgment was perverse as the trial Court had erred in passing the order of conviction and sentencing the accused on the basis of contradictory evidence of prosecution. It was argued that there was no sexual assault instincts on part of the appellant established by the prosecution. It had also been submitted that the appellant had falsely been implicated in the case on the basis of some old animosity. It was further stated that the appellant had already undergone more than 3 years of jail incarceration, therefore the sentence be reduced to the period already undergone. It was further submitted that the appellant deserves some leniency as he has already suffered the ordeal of the trial since 2020 ie. for a period of 4 years.

The Court observed that, "In this case, the age of the prosecutrix is 6 years, as per prosecution witnesses, the appellant was rubbing hands on her thigh, the appellant was not able to controvert the aforesaid statement regarding rubbing hands on prosecutrix's thigh."

The Court further said that what constituted to outrage female modesty was nowhere defined.

"The essence of a woman's modesty is her sex. However, culpable intention of the appellant is crux of the matter. The reaction of the woman is certainly relevant but its absence is not always decisive. Here, is the case of 6 years old child, hence, in order to gather the intention of accused to outrage the modesty, the act and conduct of the appellant would be relevant," the Court added.

The Court came to the conclusion that the appellant had used criminal force upon the child to outrage her modesty and since the appellant was liable to be convicted under Section 9(m)/10 of POCSO Act, he was not required to be punished under Section 354 of IPC.

In view of the seriousness of the offence, the Court rejected the plea for reduction in the period of sentence. The criminal appeal was dismissed.