Holding hands of a minor girl and opening of the zip of pants does not fall under the purview of ''sexual assault'' or ''aggravated sexual assault'' of the Protection of Children from Sexual Offences (POCSO) Act, the Nagpur bench of the Bombay High Court has said.
The HC was hearing an appeal filed by a 50-year-old man challenging a session court's order sentencing him for sexually assaulting a five-year-old girl.
In October 2020, the convict, Libnus Kujur, was convicted under sections 354-A (1)(i) (outraging modesty) and 448 (house-trespass) of the IPC and sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act, India Today reported.
Justice Ganediwala, in her order, said that while the prosecution has established that the accused entered the house of the victim with an intention to outrage her modesty, it cannot constitute the charge of ''sexual assault'' or ''aggravated sexual assault''.
The high court cited that the definition of "sexual assault" under the POCSO Act that mentions 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 allegedly witnessed by the prosecution witness (mother of the victim), in the opinion of this court, does not fit in the definition of ''sexual assault''," Justice Ganediwala said.
"At the most, the minor offence punishable under section 354-A(1)(i) of the IPC read with section 12 of the POCSO Act is proved against the appellant (Kujur)," the HC said.
What Was The Case?
Kujur had entered the house of the victim when her mother had gone to work on February 12, 2018. When the mother came back from work, she found the accused holding the hand of her daughter with the zip of his pants open.
The mother, in her complaint, had mentioned that the accused had removed his private part from the pant and asked her daughter to come to bed to sleep.
"Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose," the HC said.
In another damning statement this month, the Bombay High Court had acquitted a man of sexual assault after it observed that pressing breasts of a child without direct "skin to skin" physical contact does not constitute "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act, Indian Express reported.