Holding minor's hands, unzipping pants not sexual assault: HC

A Bombay High Court judge, whofaced flak for acquitting a man of groping a 12-year oldgirls breast because he did not make skin-to-skin contact,had ruled four days earlier that holding the hands of a five-year-old girl and unzipping his pants do not amount to 'sexualassault' under the Protection of Children from Sexual Offences(POCSO) Act.

A single bench of Justice Pushpa Ganediwala made theobservation on January 15 while ruling on an appeal by a 50-year-old man challenging a sessions court order convicting himfor sexually assaulting and molesting the 5-year-old girl.

Another judgment passed by Justice Ganediwala onJanuary 19 acquitting a 39-year-old man for groping a minorgirl, noting that there was no ''skin-to-skin contact withsexual intent'' has faced severe flak.

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

The 50-year-old Libnus Kujur was convicted undersections 354-A (1)(i) (outraging modesty) and 448 (housetrespass) of the IPC and sections 8 (sexual assault), 10(aggravated sexual assault) and 12 (sexual harassment) of thePOCSO Act in October 2020 and sentenced to 5 years in jail.

In her order, Justice Ganediwala noted that while theprosecution 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'.

She noted that the definition of ''sexual assault''under the POCSO Act says that there has to be ''physicalcontact 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 court said the case facts are insufficient to fixthe criminal liability on the accused for the alleged offenceof aggravated sexual 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 and on her return found the accused holding thehand of her daughter and his pants unzipped.

While recording evidence in the lower court, she hadalso said that her daughter claimed the accused asked her tosleep with him.

The high court quashed Kujur's conviction undersections 8 and 10 of POCSO Act, but upheld his convictionunder other sections. It said it was modifying the sentenceand noted that Kujur has been in jail five months.

''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, adding the accused shallbe set free if he is not required in any other case.