In another shocking judgment, the Nagpur bench of Bombay High Court ruled that the act of holding hands of a minor girl and opening pant’s zip will not come under the definition of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act 2012. Instead, it comes under the ambit of ‘sexual harassment’ under Section 354-A (1) (i) of the Indian Penal Code.
The ruling came from the same judge who gave a controversial judgment stating ‘skin to skin touch with sexual intent’ necessary to constitute sexual assault under POCSO Act. The judgment dated January 19 was highly criticized and was stayed by the Supreme Court on Wednesday.
A single-judge bench of Justice Pushpa Ganediwala on Thursday announced the verdict while hearing a criminal appeal filed by a sexual assault convict. A 50-year old man was convicted by a session court for molesting a 5-year-old girl.
The Session Court had convicted him under the offence of aggravated sexual assault under Section 10 of POCSO Act and sentenced him to five years of rigorous imprisonment and a fine of Rs 25,000 with a default simple imprisonment for six months.
Justice Ganediwala set aside the Session Court’s order which held him guilty under Section 8, 10, and 12 of the POCSO Act, and convicted him under Section 354A (1) (i) IPC.
The High Court observed that the following case comes under the ambit of ‘sexual harassment’ under IPC and not ‘sexual assault’ under POCSO Act.
Police had registered a case following a complaint filed by the victim’s mother. She stated in her complaint that she saw the accused whose pant’s zip was opened and was holding the hands of her daughter. She further testified that her daughter told her that the accused removed his penis from the zip and asked the victim to come to bed.
“Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault,” Justice Ganediwala noted the definition of sexual assault under Section 7 of POCSO Act.
The court observed that as per the definition, physical contact with sexual intent with penetration is an essential ingredient for the offence. The court observed that since no touching of the private parts happened in the following case, it is to be considered if the act will come under the ambit of the third part of the definition stating any other Act with sexual intent which involves physical contact without penetration.
The court further stated that the words “any other act” should be interpreted ejusdem generis with the beginning portion of the definition. “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this Court,” the court said.
As per the POCSO Act, sexual assault when committed against a minor girl below the age of 12, the offence will come under the definition of ‘aggravated sexual assault’ under Section 9 and punishable under Section 10.
The court noted that the allegations against the accused are not sufficient to fix criminal liability on him for that offence under Section 10 of POCSO Act.
The Nagpur bench of Bombay High Court observed that the offence of sexual harassment under Section 354A(1)(i), which deals with physical contact and advances involving unwelcome and explicit sexual overtures is attracted in this case.
“Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinions of this court, the imprisonment which he has already undergone would serve the purpose,” the court said.