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Holding hands of victim, opening of accused’s zip of pant not sexual assault under POCSO Act: Bombay High Court

The Nagpur Bench of Bombay High Court has held that the act of holding hands of a minor or opening of zip of the pant of the accused does not amount to sexual assault as defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act.

The judgment was delivered by Justice Pushpa Ganediwala on January 15, four days before her controversial judgment on “skin-to-skin” contact being a determining factor for sexual assault under the POCSO Act.

The January 15 ruling came in an appeal against an order convicting the accused of offences under Sections 354A (sexual harassment) and 448 (punishment for house trespass) under the Indian Penal Code along with Sections 8 (punishment for sexual assault), 10 (punishment for aggravated sexual assault) and 12 (punishment for sexual harassment) of the POCSO Act.

The complaint was filed by the mother of the victim after she found the accused holding the hands of her daughter and taking her into a room while the zipper of his trousers was open.

The High Court noted that the accused was convicted by the trial court for committing aggravated sexual assault under Section 8 of the POCSO Act.

Justice Ganediwala held that the acts which are alleged against the accused are not sufficient for fixing criminal liability on him for the alleged offence of ‘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”, the judgment reads.

The Court referred to the definition of sexual assault to determine if the act fell in that bracket. Reference was made to Section 7 of the POCSO Act, which 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 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.”

After looking at the provision, the Court concluded that,

“The words ‘any other act’ encompasses within itself, the nature of the acts which are like 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 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,

“In this view of the matter, the prosecution could establish that appellant/accused entered into 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.”

In addition to this, the sentence of the accused was reduced to time already served by him. After noting that the accused had undergone a total imprisonment of about five months, 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, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose.”

 

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