The Bombay High Court (Nagpur Bench) has passed another judgment under the POCSO Act within a week, that ruled that the act of holding a minor girl’s hands and opening the zip of pants will not fall under the definition of “sexual assault” under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
However, the Single-judge Bench held that the same act would fall under sexual harassment under section 354-A (1) (i) of the Indian Penal Code. Justice Pushpa Ganediwala was hearing a criminal appeal filed by the accused challenging his conviction and sentence under the Indian Penal Code and POCSO Act for sexual advances, house trespass and aggravated sexual assault.
The Sessions Court had held that the accused was guilty of “aggravated sexual assault” punishable under section 10 of POCSO Act and sentenced him to five years rigorous imprisonment and fine of Rs. 25,000 with a default simple imprisonment for six months.
As his appeal came up before the High Court, Justice Pushpa considered section 7 of POCSO Act that defines sexual assault, noting that as per the definition, “physical contact with sexual intent without penetration” is an essential ingredient for the offence.
The mother/ informant of the young survivor said that she saw the accused, whose pants zip was opened, holding the hands of her daughter. She further testified that, “her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping.”
As per this prosecution story, the court observed, since no actual touching of the private parts of the body happened in the case, it considered whether the act will come under the ambit of the third part of the definition under section 7- “any other Act with sexual intent which involves physical contact without penetration”.
The High Court noted, “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, does not fit in the definition of ‘sexual assault’”.
According to the POCSO Act, sexual assault when committed against a child aged less than 12 years, becomes “aggravated sexual assault” under section 9, which is punishable under section 10. Considering the fact that the offence of aggravated sexual assault has a minimum sentence of five years imprisonment, the court said that allegations are not sufficient to fix “criminal liability” on the appellant/ accused for the alleged offence under section 10 of POCSO Act.
Justice Pushpa, then set aside his conviction under POCSO Act and charged him under Indian Penal Code section which deals with “physical contact and advances involving unwelcome and explicit sexual overtures” under section 354A (1) (i).
This Indian Penal Code section attracts a maximum imprisonment of 3 years but the Single Bench held that the 5 months imprisonment already undergone by the accused was sufficient punishment for the offence and that he should be set free.
“Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose….. As the appellant/accused is in custody, he shall be set free, if he is not required in any other criminal case,” the court held.
Accordingly, his appeal was partly allowed and disposed of. Justice Pushpa Ganediwala recently pronounced another judgment ruling that pressing the breasts without disrobing a minor would not amount to sexual assault and acquitted the accused under the POCSO Act. As this verdict raised a furore, yesterday on January 27, the Supreme Court ordered a stay on the acquittal of the accused.
The judgment may be read here:
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