In yet another controversial ruling, the Nagpur bench of the Bombay High Court on Wednesday 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.
According to the reports, a single judge bench of Justice Pushpa Ganediwala ruled that the sexual assault instead comes under the ambit of ‘sexual harassment’ under Section 354-A (1) (i) of the Indian Penal Code.
Hearing a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl, Justice Ganediwala observed that the case comes under the gambit of ‘sexual harassment’ and not ‘sexual assault’.
“The offense 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,” the bench said.
Reportedly, the police had registered a case based on the complaint lodged by the victim’s mother, who had alleged that the accused had held her daughter’s hands with his pant zip opened. 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.
The accused was sentenced to five years of imprisonment and Rs 25,000 fine for the charges of ‘aggravated sexual assault’ under section 10 of POCSO Act by a sessions court. He had then appealed in the HC against the lower court verdict.
Act does not fall under the POCSO act, says Bombay HC
Justice Ganediwala, hearing the case, observed that 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”.
Further, 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 court wondered if 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”, as per the report by Live Law.
Groping a minor’s breast without ‘skin contact’ not sexual assault: Bombay High Court
Just a few days back, the Nagpur Bench led by Justice Pushpa Ganediwala had ruled that groping without skin-to-skin contact is not sexual assault. The Nagpur Bench of the Court had said that the act involving a minor would not amount to sexual assault if the accused did not remove the top of the minor or slide his hands under her garment.
In her order Justice Pushpa Ganediwala had ruled, “Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required.”
“The act of pressing the breast of a child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside her top and pressed her breast, would not fall under the definition of ‘sexual assault’,” Justice Ganediwala observed, before acquitting the accused who was found guilty of assault under Protection of Children from Sexual Offences Act (POCSO).
Following the Bombay HC order to acquit the accused, the Supreme Court stayed the controversial Bombay High Court verdict on Wednesday. A Bench led by Chief Justice of India Sharad A Bobde took cognisance instantaneously after Attorney General K.K. Venugopal made a special mention in court, saying the High Court decision would set a ‘very dangerous precedent’ and cripple the intention of POCSO to punish sexual offenders.
