Holding girl's hands, opening pant's zip no sexual assault under POCSO: HC


PTI | Nagpur | Updated: 28-01-2021 14:55 IST | Created: 28-01-2021 14:40 IST
Holding girl's hands, opening pant's zip no sexual assault under POCSO: HC
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The Nagpur bench of the BombayHigh Court has ruled that holding the hands of a minor girland opening of the zip of pants does not fall under thepurview of 'sexual assault' or 'aggravated sexual assault' ofthe Protection of Children from Sexual Offences (POCSO) Act.

The observation was made by a single bench of JusticePushpa Ganediwala on January 15 while passing an order on anappeal filed by a 50-year-old man challenging a sessionscourt's order convicting him for sexually assaulting andmolesting a five-year-old girl.

The convict, Libnus Kujur, was in October 2020convicted under sections 354-A (1)(i) (outraging modesty) and448 (house-trespass) of the IPC and sections 8 (sexualassault), 10 (aggravated sexual assault) and 12 (sexualharassment) of the POCSO Act. He was sentenced to five yearsin jail.

In her judgement, Justice Ganediwala noted that whilethe prosecution has established that the accused entered thehouse of the victim with an intention to outrage her modestyor sexually harass her, it has not been able to prove thecharge of 'sexual assault' or 'aggravated sexual assault'.

The high court noted that the definition of ''sexualassault'' under the POCSO Act says that there has to be''physical contact with sexual intent without penetration''.

''The acts of 'holding the hands of the prosecutrix(victim)', or 'opened zip of the pant' as has been allegedlywitnessed by the prosecution witness (mother of the victim),in the opinion of this court, does not fit in the definitionof 'sexual assault','' Justice Ganediwala said.

The high court further said that the facts of thepresent case are not sufficient to fix the criminal liabilityon the accused (Kujur) for the alleged offence of aggravatedsexual assault.

''At the most, the minor offence punishable undersection 354-A(1)(i) of the IPC read with section 12 of thePOCSO Act is proved against the appellant (Kujur),'' the courtsaid.

The prosecution's case is that Kujur had on February12, 2018 entered the house of the victim when her mother hadgone to work.

When the mother returned from work, she found theaccused holding the hand of her daughter with the zip of hispants open.

The mother, while recording her evidence in the lowercourt, had said that her daughter had informed her that theaccused person had removed his private part from the pant andasked the victim to come to bed for sleeping.

The high court quashed Kujur's conviction undersections 8 and 10 of POCSO Act, but upheld his convictionunder the other sections.

The court, however, said it was modifying the sentenceand noted that Kujur has so far undergone five months inprison.

''Considering the nature of the act, which could beestablished by the prosecution and considering the punishmentprovided for the aforesaid crimes, in the opinion of thisCourt, the imprisonment which he has already undergone wouldserve the purpose,'' the court said.

The court said the accused shall be set free if he isnot required in any other case.

Another judgment passed by Justice Ganediwala thismonth acquitting a 39-year-old man for groping a minor girl,noting that there was no ''skin-to-skin contact with sexualintent'' has faced severe flak.

The Supreme Court had on Wednesday stayed operation ofthis order after Attorney General K K Venugopal mentioned thematter submitting that it was a very disturbing conclusion bythe Bombay High Court.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)

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