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Holding minor’s hand, unzipping pants not sexual assault under POCSO: Bombay HC

The court on January 15 held that such acts would be liable for punishment for sexual harassment under Section 354-A of the Indian Penal Code (IPC) and Section 12 of the POCSO Act.

Written by Omkar Gokhale | Mumbai |
Updated: January 29, 2021 12:27:55 am
Justice Pushpa V Ganediwala. (File)

The Nagpur bench of the Bombay High Court recently held that acts like “holding the hands of a minor” and the accused “opening of zip of the pant” does not amount to sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The court on January 15 held that such acts would be liable for punishment for sexual harassment under Section 354-A of the Indian Penal Code (IPC) and Section 12 of the POCSO Act.

A single judge bench of Justice Pushpa V Ganediwala passed the ruling while hearing an appeal against the October 5, 2020 order of a Gadchiroli court, which convicted Libnus Kujur (50) of offences under sections 354-A (sexual harassment) and 448 (house trespass) of the IPC, along with sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act.

In the January 15 ruling, the bench noted that on February 12, 2018, the mother of a 5-year-old girl had filed a police complaint a day after she found Kujur holding the hands of her daughter and taking her into a room while his trousers were unzipped.

As per the police complaint, when the mother left for work, her two daughters – aged around three and five years – were alone in the house. Her husband was out of station. She alleged that on returning home, she saw a man holding the hands of her elder daughter. As she raised an alarm and her neighbours gathered, the accused ran away.

The mother said in the complaint that her daughter told her that the accused had removed his private part from his unzipped trousers and asked her to come to the bed to lie down with him. The woman added that she had also noticed that the accused’s trouser zip was undone.

The HC noted that as per the definition of “sexual assault” under POCSO Act, “‘physical contact with sexual intent without penetration” is an essential ingredient for the offence.

In light of this, the court observed, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’, as has been allegedly witnessed by the prosecution witness, in the opinion of this court, does not fit in the definition of ‘sexual assault’.”

The HC quashed Kujur’s conviction under sections 8 and 10 of the POCSO Act, but upheld his conviction on charges of sexual harassment and house trespass.

Noting that the minimum sentence for the offence of sexual assault is five years of imprisonment, it observed, “Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing the criminal liability on the appellant/accused for the alleged offence of ‘aggravated sexual assault’. At the most the minor offence punishable under Section 354-A(1) (I) of the IPC read with Section 12 of the POCSO Act is proved against the appellant.”

The court said it was modifying the sentence and noted that Kujur has so far undergone five months in prison. Justice Ganediwala said, “Considering the nature of the act, in the opinion of this court, the imprisonment which he has already undergone would serve the purpose.”

Disposing of the criminal appeal, Justice Ganediwala added: “The sentence is modified to the extent he has already undergone. As the appellant/accused is in custody, he shall be set free, if he is not required in any other criminal case.”

On January 19, Justice Ganediwala had passed an order acquitting a man of sexual assault under POCSO Act on the grounds that pressing the breasts of a child over her clothes without direct “skin-to-skin” physical contact does not constitute “sexual assault” under the Act.

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