In a judgement by the Nagpur Bench of the Bombay High Court, it was held that it will not be considered as a sexual assault when the act involves ‘holding the hands of the prosecutrix’ (a female victim), or ‘opening pant zip’ of the male counterpart involved under the Protection of Children from Sexual Offences Act (POCSO). With the same ruling, quashed the conviction of a man held under these charges of POCSO.
On the 12th day of February, 2018, a minor’s mother filed a report when earlier that day she saw Libnus Kujur, who is a labourer, working in her house, molesting her elder daughter aged 5 year-old. In her narration of the incident she shared that he was holding her elder daughter’s hand and immediately shouted for neighbours to come in, meanwhile the accused ran away.
She further added that her minor child shared the exact details of what he told her. The child explained that the labourer removed his penis from the pant and asked her to accompany to bed for sleeping.
The mother saw Kujur’s pant zip open. He was charged and convicted under sections 354A (1) (i) which is for physical contact and advances involving unwelcome and explicit sexual overtures and section 448 which is for punishment for house-trespass of the Indian Penal Code (IPC) and section 8 which stands for punishment for sexual assault, Section 9 (m) which deals with whoever commits sexual assault on a child below twelve years; Section 10 which is for punishment for aggravated sexual assault, Section 11 (i)stands for utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child and Section 12 which deals with punishment for sexual harassment of POCSO.
Justice Pushpa Ganediwala heard the criminal appeal filed by Kujur, from Gadchiroli challenging his conviction by the lower court on October 5, 2020 wherein he was sentenced for five years.
On which the HC said, “The minimum sentence for the offence (punishment for aggravated sexual assault) is five years imprisonment. Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing the criminal liability on the appellant/accused for the alleged offence of ‘aggravated sexual assault’. At the most the minor offence punishable under section 354-A (1) (i) of the IPC is proved against the appellant.”
In a nine page order, which was passed on January 15th, stated that “The judgement for the offence punishable under Sections 8, 10 and 12 of the POCSO Act, is crushed and dusted. The conviction is punishable under Sections 448 and 354-A(1) (i) of the IPC is maintained.”
On the 19th of January, Justice Ganediwala gave another judgement where she cleared a man charged under the POCSO Act and again convicted him under ‘minor offence’ of IPC stating, “Since there is no direct contact physically, meaning skin-to-skin with a sexual intent without penetration”.
Though the Supreme Court on Wednesday has put a stay on that order.