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Opening pant zip, holding child’s hand not sexual assault under POCSO, says Bombay HC

Justice Pushpa V. Ganediwala, who earlier interpreted sexual assault as only skin-to-skin contact, quashed a conviction against an accused under POCSO provisions.

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New Delhi: The Bombay High Court has held that holding a child’s hands and unzipping pants do not fall under the purview of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In a judgment delivered on 15 January, the Nagpur bench of the high court held, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1 (the girl’s mother), in the opinion of this court, does not fit in the definition of ‘sexual assault’.”

The order was passed on an appeal filed by the accused challenging a trial court’s order that convicted him for sexually assaulting a five-year-old girl.

The verdict was passed by Justice Pushpa V. Ganediwala, who had passed another controversial order on 19 January that interpreted the sexual assault provisions under POCSO Act as only “skin-to-skin” contact with sexual intent. This verdict was stayed by the Supreme Court Wednesday.

According to the complaint, the accused, Libnus, had trespassed into a woman’s house and molested her five-year-old daughter in February 2018. On returning from her work, the woman alleged that she saw Libnus in the house, holding her daughter’s hand and trying to take her to one of the rooms in her house.

According to the judgment, the woman alleged that her daughter informed her that the accused exposed himself and “asked her to come to the bed for sleeping”. The mother also “noticed that the zip of the pant of the appellant/accused (Libnus) was opened”.

Libnus was convicted in October last year, under sections 354A(1)(i) (sexual harassment) and 448 (house trespass) of the Indian Penal Code, and sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act, 2012. He was sentenced to five years rigorous imprisonment along with a Rs 25,000 fine. 

The high court, however, felt that the allegations did not fit into the definition of sexual assault under POCSO Act. 

Also read: Why Bombay High Court’s fury on Rhea Chakraborty’s media trial is misdirected

Accused to be set free after 5 months in jail

In the judgment, the court took note of the definition of sexual assault under Section 7 of the POCSO Act, which says that a person commits sexual assault if he or she, “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”.

As for aggravated sexual assault, Section 9 says that “whoever commits sexual assault on a child below twelve years… is said to commit aggravated sexual assault”. The punishment for sexual assault is three to five years imprisonment, and for aggravated sexual assault is five to seven years jail term.

The court, however, opined, “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’.”

It, therefore, allowed the appeal and quashed his conviction under provisions of the POCSO Act, while upholding his conviction under the Indian Penal Code provisions. 

Justice Ganediwala noted that the maximum punishment under Sections 354A(1)(i) is three years and fine, and under Section 448 is one year imprisonment and fine. Libnus has so far spent about five months in jail.

The judge modified the accused’s sentence to the period already spent in prison and ordered he be set free. 

Also read: This is the reason why BHC argues groping a child is not sexual assault under POCSO


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