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Holding hand of a Girl child, zipping off pants do not fall under POCSO act: Court on sexual assault

Holding the hands of a minor or the zip of the pants of the accused being open at the relevant time does not amount to sexual assault under the Protection of Children from Sexual Offences (Pocso) Act, the Bombay High Court has held.

The judgment was delivered by Justice Pushpa Ganediwala on January 15, four days before she held that groping a minor without skin-to-skin contact was not sexual assault under the Pocso Act. Pushpa Ganediwala’s “skin-to-skin” judgment was stayed by the Supreme Court on Wednesday.

The January 15 order was passed while hearing a mother who had accused a person of holding her daughter’s hands and taking her into a room while the zipper of his trousers was open.

A lower court had convicted the man under Sections 354A (sexual harassment) and 448 (house trespassing) under the Indian Penal Code along with Sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the Pocso Act.

Justice Ganediwala held that the acts which are alleged against the accused are not sufficient to prove ‘aggravated sexual assault‘. “At the most, the ‘minor offence’ of sexual harassment punishable under Section 354A (sexual harassment) of IPC with Section 12 of Pocso is proved”, said Justice Ganediwala’s judgment.

Before concluding, the court referred to the definition of sexual assault to determine if the acts fell in that bracket. A reference was made to Section 7 of the Pocso Act that states: “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 a 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.”

Justice Ganediwala in her 9-page judgment said, “The words ‘any other act’ encompasses, within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that. The acts of ‘holding the hands of the prosecutrix’, or ‘opened the 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’.”

While quashing the charges under Section 8 and 10 of the Pocso Act, the court upheld the accused’s conviction under Section 354A(1)(i) IPC read with Section 12 of the Pocso Act. While Section 10, under which the accused was convicted by the trial court, carries a sentence of 5-7 years’ imprisonment, the punishment under Section 12 of the Pocso Act is imprisonment for up to three years.

The court held, “The prosecution could establish that appellant/accused entered the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined u/s 11 of the Pocso Act. Therefore, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC r/w Section 12 of the Pocso Act is maintained.”

Justice Ganediwala upheld the conviction of the man for offences under the sexual harassment sections (Pocso and IPC) but acquitted him on aggravated sexual assault charges.

After noting that the accused had spent five months in jail, the court held, “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, the imprisonment which he has already undergone would serve the purpose.”

Written by Dharam Sikarwar

Writer, historian, and activist Dharam Sikarwar is a very active author The Youth. He writes on national and international issues, environment, politics. He is an avid book reader as well.

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