Interpretation of `sexual assault' in HC rulings flawed: Ex-CJ

Two judgments passed by theBombay High Court in the span of a week have led to outragewith legal experts questioning the judge's narrowinterpretation of the term ''sexual assault'' in both cases.

One of the judgments was stayed by the Supreme Courton Wednesday.

A former chief justice of the high court called boththe rulings ''perverse'', while another retired judge expressedapprehension that they may set wrong legal precedents.

In a ruling passed on January 19, Justice PushpaGanediwala of the Nagpur bench held that there must be skin-to-skin contact with sexual intent for an act to be considereda sexual assault under the Protection of Children from SexualOffences Act (POCSOA).

Four days earlier, the same judge had also held that aman holding the hands of a five-year-old girl and unzippinghis own pants did not amount to sexual assault.

In the judgment of January 15, Justice Ganediwala setaside the conviction of Libnus Kujur (50) for aggravatedsexual assault on a five-year-old girl, but upheld hisconviction for outraging the modesty of a woman/girl under theIndian Penal Code.

Holding hands of a minor girl and unzipping his ownpants did not fall under the ambit of sexual assault asdefined under the POCSOA, the court said. Kujur's five-yearsentence was reduced to five months which he had undergonealready, and the high court ordered him to be set free.

In the second judgment on January 19, JusticeGanediwala acquitted a 39-year-old man who was booked forgroping a 12-year-old girl, noting that there was no ''skin-to-skin contact with sexual intent''.

In a scathing criticism, Pradeep Nandrajog, a formerChief Justice of the Bombay High Court, said both thejudgments were ''flawed and perverse''.

''What needs to be seen importantly by the courts insuch cases is the intention of the accused. Any inappropriatetouch or gesture done with a sexual intent falls under theprovisions of the POCSO Act,'' he said.

Whether it is a skin-to-skin touch or holding hands orunzipping pants is immaterial when the intention is to commitsexually assault, the retired judge said.

''It is more troubling that the judgments have come froma lady judge. We appoint women judges, officers and staff inthe lower courts to preside over cases under this Act as theywould be in a better position to understand and interact withthe victim girls,'' Justice Nandrajog said.

Justice Abhay Thipsay, another retired Bombay HighCourt judge, also termed the rulings as flawed.

''If the judge has arrived at a particular conclusionin both the judgments then the same should have had strongreasoning,'' he said.

The two judgments could have wide implication infuture cases, Thipsay told PTI.

''What if in a case, the accused person is wearinggloves, then he can use this judgment to say that there was noskin-to-skin touch and hence no sexual assault,'' he said.

Renowned special prosecutor Ujjwal Nikam said theintention of the legislature in enacting POCSOA was to protectminor girls by providing for deterrent sentences.

''Therefore, the conduct and intention of the accusedshould be looked into and one should not go intotechnicalities....these technicalities cannot defeat the verypurpose of the law,'' Nikam said.

Women's rights lawyer Flavia Agnes said the judgmentsdid not interpret the provisions of POCSOA correctly.

''POCSOA cases must be dealt with in a sensitivemanner. The Act talks of sexual assault in cases where thereis penetration and also where there is no penetration,'' shetold PTI.

In the case where the 39-year-old man was acquittedfor lack of skin-to-skin contact, he had the intent to commitsexual assault, so how could the court set aside hisconviction, Agnes said.

The Supreme Court on Wednesday stayed the January 19judgment after Attorney General K K Venugopal mentioned it.

The apex court also permitted Venugopal to file anappeal against the judgment.