Mumbai:

The simple act of rubbing the back and head of an underage girl without any sexual intent does not amount to outrage of her modesty, the Nagpur Bench of the Bombay High Court has noted in quashing the conviction of a 28 year old man.

The case dates back to 2012 when the convict, then 18, was convicted of indecent exposure of a 12-year-old girl.

According to the victim, the accused moved his hand to her back and head and said she had grown.

A single bench of Judge Bharati Dangre, while quashing the conviction, noted that there was no sexual intent on the part of the convict and that his remarks indicated that he had seen the victim as a child.

“To outrage the modesty of a woman, the most important thing is to have the intention to outrage the modesty. It is not the case with the prosecution that the accused did something more than what was alleged, namely, to pass his hand over the victim’s back and head.

“None of the girl victims between the ages of 12 and 13 spoke of a bad intention on their part, but what they testified was that they felt bad or indicated an unpleasant act that caused them to ‘made me feel uncomfortable,’ the judge said in the February 10 order.

The HC further stated that the prosecution had produced no evidence that there was any specific intent on the part of the caller to offend the girl’s modesty.

“In the absence of a specific intent established by the prosecution to outrage modesty, it is not clear how article 354 was invoked and even taken as proven, with the specific version that the victim was afraid that the ‘accused touches her on her back and saying she grew up,’ the court heard.

The defendant’s statement clearly indicates that he had seen her as a child and, therefore, he said she had grown up, the bench added.

According to the prosecution, on March 15, 2012, the appellant, then 18 years old, went to the victim’s home when she was alone to deliver documents.

He then touched her back and head and said she had grown, and the girl was uncomfortable and screamed for help, the prosecution alleges.

The man, who was found guilty by the magistrates’ court and sentenced to six months in jail, had appealed the order to HC.

In its order, the HC said the trial court erred because the present case, on the face of it, appeared to be an impromptu action without sexual intent.

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