Amid a raging controversy over its earlier verdict that groping without “skin-to-skin” contact is not sexual assault, the Bombay High Court has stirred up a hornet’s nest once again through its fresh ruling that “unzipping pants or holding a minor’s hand” does not amount to “sexual assault” under the POCSO Act.
“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’,” Justice Pushpa V Ganediwala of the Nagpur bench of the Bombay High Court has ruled.
Justice Pushpa came up with this ruling, while deciding on a criminal appeal filed by Libnus Kujur (50), a labourer from Gadchiroli, who was convicted by a lower court.
On the complaint filed in the case, the judge noted: “....the informant (PW-1) further testified that her daughter informed her that appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping. The informant also noticed that the zip of the pants of the appellant/accused was opened.” However, after she screamed, her daughter was freed.
Reproducing what is sexual assault as per section 7, Justice Pushpa noted: “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.”
However, the Judge ruled that the offence of ‘sexual harassment’ under section 354(A)(1)(i) of the Indian Penal Code that deals with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, is attracted.
Accordingly, the Nagpur bench set aside the accused-appellant’s conviction under the sections 8, 10, 12 of POCSO Act but pronounced him guilty under the IPC that attracts a maximum of 3 years jail term.
While AC Jaltare was advocate for the appellant, MJ Khan was the assistant public prosecutor in the case.
It may be recalled that ruling given by the same Judge some time last year in another case had sparked a debate in various circles. In that ruling, the same Judge had ruled that groping a minor’s breast without ‘skin to skin contact’ could not be termed as sexual assault.