Pulling minor’s hand after she ignores whistle is harassment, not sexual assault: Madras High Court

The Madras High Court recently observed that a man pulling a minor girl’s hand after she fails to respond to his whistle cannot, by itself, be said to be an act committed with sexual intent [Mandai Vs State].Justice M Nirmal Kumar made the observation while suspending the three-year prison sentence of an man convicted under Section 8 (sexual assault) of the Protection of Children from Sexual Offences Act (POCSO Act).“Such act cannot be straightaway termed as sexual intent and at most, it can be termed as harassment and not an act of sexual assault. Hence, the judgment needs to be re-considered,” the Court said..The convict, Mandai alias Manogaran, and the minor girl lived in the same compound. The prosecution alleged that on March 1, 2020, the girl was going to her aunt’s house to collect food when he whistled and called her from a balcony.When the girl did not respond, he allegedly came downstairs, pulled her by the hand and smiled at her "with sexual intent". The girl pulled herself away and informed her mother, who lodged a police complaint the following day.A special POCSO court in Chennai convicted the accused on June 6 and sentenced him to three years’ rigorous imprisonment. It also imposed a fine of ₹1,000. The petitioner then challenged his conviction and sought suspension of the sentence pending disposal of his appeal..His counsel argued that previously there had been an altercation between the petitioner and the girl’s father and that the allegations were false. It was pointed out that the girl, who was examined as the sole eyewitness, had stated that the accused pulled her hand by force but did nothing else.He also contended that the allegations did not make out an offence of sexual assault punishable under Section 8 of the POCSO Act. At most, the incident could constitute sexual harassment under Section 11, it was argued.In response, the State argued the girl had consistently confirmed the petitioner’s conduct in her police statement, statement recorded before a magistrate and in her subsequent testimony before the trial court.However, the State also acknowledged that a sentence of three years would ordinarily be suspended by the trial court itself. In the present case, no application for suspension had been filed before the trial court and the petitioner had consequently remained in prison..The High Court noted that the only overt acts attributed to the petitioner were whistling at the girl, calling her and pulling her hand when she did not respond. It found that the appeal raised arguable issues requiring reconsideration but it would take some time to decide the appeal. Consequently. the Court suspended his sentence and granted him bail..The petitioner was represented by advocate K Sudhakar. The State was represented by Government counsel Sharada Vivek..[Read Judgment]