The benefit under the Probation of Offenders Act, 1958, cannot be availed by convicts under the Protection of Children from Sexual Offences Act, 2012, (POCSO Act) the Calcutta High Court recently observed while upholding a three-year jail term handed down to a man (appellant) for pawing at a girl while she was walking outside with her mother [Prakash Shaw v. State of West Bengal].
Justice Siddhartha Roy Chowdhury upheld the conviction and sentence while relying on the testimony given by the victim girl.
The testimony given by the victim to the Magistrate as well as the trial court by the victim was consistent, the Court found.
“There is nothing to impeach her credibility. When a ring of truth is found in what has been stated by the victim girl before the learned Trial Court, non-examination of the victim girl by police is of no consequence,” the Court further held.
The Court also rejected pleas to give the appellant the benefit of probation instead of jail.
The counsel for the appellant had highlighted that the appellant was only a teenager when the alleged incident took place and that he has since become a responsible young man who earns for his family.
The lawyer further highlighted that the appellant had no criminal antecedents. The Court was urged not to subject the appellant to the deleterious effect of jail for life.
The Court, however, noted that since the POCSO Act was a special law, the Probation of Offenders Act cannot apply. In this regard, the Court also relied on the Supreme Court’s rulings in Superintendent, Central Excise v. Bahubali and State v. Ratan Lal Arora.
“Probation of offenders Act, 1958, therefore cannot be made applicable in this case in derogation of such special enactment of 2012,” the High Court held.
The case stemmed from an incident that took place in 2014. The Court was told that the appellant had pawed at and touched the breast of the victim girl while she was walking with her mother on a footpath.
As soon as this happened, the girl is stated to have screamed and the boy was caught.
The police arrived soon after and a case was registered under Section 354A (sexual harassment) of the Indian Penal Code read with Section 8 (sexual assault) of the POCSO Act.
The appellant’s counsel argued that since the incident took place in a crowded area, the alleged touch could have happened accidentally.
The Court, however, noted that the appellant, once caught, did not utter anything to indicate that he did not intend to commit the offence.
The Court also rejected the argument that the girl was not medically examined by a doctor.
“In a case of Section 8 of POCSO Act examination of doctor is not at all required in the given facts and circumstances," the Court said.
These, among other factors led the Court to uphold the appellant’s conviction and sentence.
[Read Judgment]