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A Look at the Recent Controversial Sexual Assault Rulings under POCSO

Image for representation. (Reuters)

Image for representation. (Reuters)

This week, in yet another shocking judgment, a special Protection of Children from Sexual Offences court ruled that touching a child's cheek without any sexual intent does not amount to an offence. The incident took place in 2017 when the accused had visited the house of the victim on the pretext of fixing a broken refrigerator.

In the past month, some of Bombay High Court’s POCSO rulings have triggered widespread criticism over the interpretation of and the loopholes in the Protection of Children from Sexual Offences Act, 2012.

This week, in yet another shocking judgment, a special Protection of Children from Sexual Offences court ruled that touching a child's cheek without any sexual intent does not amount to an offence. The incident took place in 2017 when the accused had visited the house of the victim on the pretext of fixing a broken refrigerator.

After hearing the 33-year-old woman's plea, the court sentenced one-year of imprisonment to the accused on charges of sexually molesting the mother however on the charges of molesting the child, the court acquitted him stating that the act of touching the child's cheek was not an offence.

Here’s looking at few other controversial judgements:

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‘Groping Without 'Skin-to-skin' Contact Does Not Amount to Sexual Assault under POCSO’

The Bombay High Court, modifying a sessions court order that held a man guilty of a minor's sexual assault, ruled that groping a child without "skin-to-skin contact with sexual intent" does not amount to the offence under the Prevention of Children from Sexual Offences (POCSO) Act. The judgement was passed on January 19, the detailed copy of which was made available now.

Justice Pushpa Ganediwala, hearing the case for the Nagpur Bench of the court, held that act of groping the 12-year-old girl's chest and attempting to strip her would amount to molestation under Section 354 of the IPC (outraging a woman's modesty). The revised sentence punished the accused with one year's imprisonment for the less graver offence.

"In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month," the judgement said.

The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and under IPC section 354. The sentences were to run concurrently.

‘Opening Pants Zip Not 'Sexual Assault' under POCSO Act’

In another shocking ruling, the Nagpur bench of the Bombay High Court held that “the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012. The act instead comes under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code, observed the bench.

The ruling was pronounced by a single bench of Justice Pushpa Ganediwala in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl.

The Session Court had convicted the man and ruled it to be "aggravated sexual assault" punishable under Section 10 of POCSO and sentenced him to five years of rigorous imprisonment and fine of Rs 25,000 with a default simple imprisonment for six months.

‘Touching Child's Cheek Without Sexual Intent Not Offence’

A special Protection of Children from Sexual Offences court ruled that touching a child's cheek without any sexual intent does not amount to an offence.

On Tuesday, a special POCSO court acquitted a 28-year-old technician who was previously accused of molesting a 5-year-old's mother.

The incident took place in 2017 when the accused had visited the house of the victim on the pretext of fixing a broken refrigerator.

Recounting the incident the mother claimed that the technician had visited their house in the afternoon to look into the broken refrigerator. The accused detected the problem and had gone out to get the spare part. When he returned he took the opportunity to feel the cheeks of the woman's 5-year-old daughter. The mother noting this, objected to this behavior and leaving him to work on the malfunctioning washing machine, went to the kitchen.

After hearing the 33-year-old woman's plea, the court sentenced one-year of imprisonment to the accused on charges of sexually molesting the mother however on the charges of molesting the child, the court acquitted him stating that the act of touching the child's cheek was not an offence.

“It is for the prosecution to prove the guilt against the accused beyond a reasonable doubt. Even considering the testimony of the mother, as it is, still there is no such overt act on part of the accused which can be termed as sexual assault to the victim girl or amounting to outraging her modesty.” the special court ruled.

first published:February 05, 2021, 12:22 IST