In the State of Maharashtra v. AN (“Accused”) (C.R.No.381/2015), on 20^th October 2022, the Special Judge at Borivali Division, Dindoshi, Mumbai Court observes that the term “item” is used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner. This indicates their intention to outrage the modesty of a woman.

Facts

‘X’, a 16-year-old girl was consistently teased and called an “item” by the Accused (25 years old) despite repeatedly telling him not to do so. On 14/07/15 at about 1.30 p.m. X had gone to school for some work. After completing the same, she was returning home at about 2.10 p.m. When she was walking through a lane, the Accused who was sitting with his friends came behind her, pulled her hair and said “kya item kidhar ja rahi ho?”

X felt ashamed, and she pleaded the Accused not to do so. At this, he started abusing her and told her to do whatever she could as she could not harm him in any way. X then dialled 100 on her mobile phone and asked for help. The police reached the spot within a short period. However, by that time, the Accused had run away from the spot.

X then went home and informed her father about the incident. They went to the Police Station. A report about the incident then came to be lodged by X which resulted in the lodging of an FIR against the Accused for the offences punishable u/s.354 (Assault or criminal force to woman with intent to outrage her modesty), 354-D (Stalking), 504 (Intentional insult with intent to provoke breach of the peace), 506 (Criminal intimidation) of the Indian Penal Code (“IPC”) and u/s.12 (Punishment for sexual harassment) of the Protection of Children from Sexual Offences Act, 2012 (“the POCSO Act”).

Observation and Judgment

• The fact that Accused intentionally caught hold of the victim’s hair and pulled it, and then called her an ‘item’ proves that he outraged her modesty. It was wholly inappropriate of the Accused to do so, and this act qualifies as using criminal force to outrage her modesty.
• Further, addressing by using the term ‘item’ is derogatory and objectifies women in a sexual manner. Using the term ‘item’ to address any girl is insulting in nature. Hence, he is punishable under Section 354 of the IPC.
• The victim was aged only about 15 and ½ years on 14/07/15 i.e., the day of the incident. Therefore, she was a “child” within the meaning of the term as given to it u/s.2(d) of the POCSO Act.
• ‘X’ has stated in her oral testimony that the accused used to follow her and tease her whenever she used to go to and fro from the said area. On 14/07/15 the accused had gone to the extent of pulling her hair. Therefore, the court was of the opinion that the accused with sexual intent, repeatedly or constantly following the child X and thereby sexually harassed her and committed the offence of sexual harassment in the way in which it is defined under section 11 of the POCSO Act
• The Accused followed the victim on the day of the incident, continuously followed her even prior to the said incident and addressed her as ‘item’. These were done with sexual intent and therefore, the Accused sexually harassed the victim as per Section 11 of POCSO Act.
• There does not arise any question of granting the benefit of probation to the 25 years old Accused or showing any unwarranted leniency to him since such offences need to be dealt with a heavy hand as a lesson needs to be meted out to such roadside Romeos, in order to protect the women from their uncalled-for behavior.

Order

• The Accused was convicted for offences punishable under Section 354 of the Indian Penal Code, 1860 and under Section 12 of the Protection of Children from Sexual Offences Act, 2012 vide Section 235 (2) of the Code of Criminal Procedure.
• For the offence punishable under Section 354 of the Indian Penal Code, the Accused was sentenced to suffer simple imprisonment for one and half years and to pay a fine of Rs.500/- in default of which, he shall undergo further simple imprisonment for 3 months.
• For the offence punishable under Section 12 of Protection of Children from Sexual Offences Act, 2012, the accused was sentenced to suffer simple imprisonment for a term of one and half years and to pay a fine of Rs.500/- in default of which, he shall suffer further simple imprisonment for 3 months.
• The court ordered both the substantive sentences to run concurrently.

Note: When terms of imprisonment are to be suffered together, the sentences are said to run ‘concurrently’. Therefore, here in this case, the accused is awarded one and a half years imprisonment for one offence and one and a half years imprisonment for the second offence. But given that this would be ‘concurrent’ punishment, both these sentences will run together, in which case, he would spend only one and a half years in prison in total for both offences combined.

– Deeksha Rai, Litigation – Associate, Equilibrio Advisory LLP