In another shocking ruling, the Nagpur bench of the Bombay High Court has 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.
However, Justice Ganediwala set aside his conviction under Sections 8, 10 and 12 of POCSO Act, but held him guilty under Section 354A (1) (i) IPC, which carries a maximum imprisonment of three years.
The Nagpur bench observed that the case comes under the gambit of “sexual harassment” and not “sexual assault”. “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 the case,” it said.
The police had registered a case based on the complaint lodged by the victim’s mother, who said that she saw the accused, whose pants zip was opened, holding the hands of her daughter. She had also testified that her daughter informed her that the accused removed his penis from the pant and asked her to come to the bed for sleeping.
While considering the appeal, Justice Gandewala noted the definition of "sexual assault" under Section 7 of the POCSO says, "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”.
The Court observed that according to the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is an essential part of the offence. “Since no actual touching of the private parts of the body happened in the case, the act will come under the ambit of the third part of the definition: any other Act with sexual intent which involves physical contact without penetration,” the High Court said.
Meanwhile, in a January 19 judgment, the Nagpur bench said groping a minor's breast without "skin-to-skin contact" cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Pushpa Ganediwala held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. It has drawn the ire of child rights bodies and activists across the country.
The Supreme Court on Wednesday stayed the Bombay High Court's controversial order. Attorney General KK Venugopal said the order would set a dangerous precedent.