Maharashtra court acquits man accused of kissing minor girl; says no criminal intent in act

Thane: A special court in Maharashtra's Thane has acquitted a man in a case of molesting a three-year-old girl by kissing her on her cheek in 2021, saying his gesture cannot be viewed as a criminal act as "any person fond of children may do so out of natural instinct".

The court gave the accused a benefit of doubt, saying there was a lack of clear criminal intent on his part and that the prosecution failed to prove the charges against him.

In an order passed on August 22, special judge Ruby U Malvankar, hearing cases pertaining to the Protection of Children from the Sexual Offences (POCSO) Act, acquitted 54-year-old Omprakash Rambachan Giri, who was accused of hugging and kissing the minor girl on two separate occasions on January 9, 2021.

The police had booked him under sections of the POCSO Act and section 354 (assault or use of criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC).

The court said, "The alleged act for which the prosecution came to be conducted against the accused cannot be categorised as an act which can in all cases be said to be an inappropriate touch or bad touch. Considering the age of the victim at the relevant time, any person who is fond of children out of natural instinct may pick her up, may affectionately kiss her on her cheek which ordinarily happens in the society." "In a country like ours, such kind of gesture - unless it is hurting the child or unless it is done by a total stranger with a bad intention - is not really considered objectionable or offensive. Therefore, in this case also, since the accused was not a total stranger as he was resident of the same locality, cannot be categorised as an altogether criminal act," it added.

The court observed that the child did not cry from pain during the alleged incidents. The judge concluded, "in all such circumstances the element of outraging the modesty of the victim is rather missing and the affectionate gesture cannot be viewed as a criminal act beyond reasonable doubt".

Based on these findings, the court extended the benefit of the doubt to the accused, leading to his acquittal. The charges under section 354 of the IPC and section 8 (sexual act) of the POCSO Act were not proven, and Giri was acquitted of all offenses.

The court also noted that the prosecution failed to provide a birth certificate or any documentary evidence to prove the victim was a "child" under the POCSO Act. Although the mother, testified that her daughter was three years old, her oral testimony was not supported by evidence.

The judge pointed out a "missing link" in the testimonies of the witnesses.

The mother did not witness the alleged incident herself, relying on information from a 12-year-old girl and another child, it said.

The investigating officer failed to record the statement of, a crucial witness who had informed the mother about the second alleged incident, the court said.

Despite the allegation of a scratch mark on the child's cheek, the investigating officer did not conduct a medical examination of the victim, calling the testimony of prosecution witness "mere improvement" to the case.

The victim's own testimony, recorded when she was seven years old, was deemed unreliable. The victim admitted in her cross-examination that her father had instructed her on what to say in court, leading the court to conclude that the possibility of her tutoring cannot be overruled.