In this post we will discuss about the controversial judgment of Bombay High Court in which it stated that “skin to skin” contact is necessary to prove Sexual Assault.
HOLDING MINOR’S HAND, UNZIPPING PANTS NOT SEXUAL ASSAULT UNDER POCSO: HC
In this report we will learn about the High Court verdict where a few slated activities were taken as “sexual assault” and the view of majority in the concerned case.
The Nagpur bench of Bombay High Court has reversed the conviction of 50 years old person under Sections 8 and 10 of the Protection of Children from Sexual Offences (POCSO) Act 2012, for allegedly molesting a 5-year-old girl, ruling that unzipping his pants and holding hands of a minor doesn’t come under the definition of ‘sexual assault’.
FACTS: This came on the original complaint filed by a woman who came to her home one afternoon and found the accused with his pants unzipped flashing his private parts as he held the hand of her five-year-old daughter and asked her to come to bed with him. When she saw this, she hurled abuses at him after that he released her daughter, who later informed her that the accused wanted her to get into bed and sleep with him. When she saw this, she hurled abuses at him and then he released her daughter, who later informed her that the accused wanted her to get into bed and sleep with him.
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The verdict by Justice Pushpa V. Ganediwala came in a criminal appeal against the conviction and imprisonment of one year and five-year jail plus fines under different laws, awarded to the 50-year-old man for molesting the five-year-old girl, by the Special Judge of Special POCSO Court, Gadchiroli, in October 2020.
Interestingly, partly allowing the appeal, the Bombay HC quashed aside the jail sentence of 5 years under the POCSO Act and modified the imprisonment as per the Indian Penal Code (IPC) to the extent the appellant-accused has already served as an undertrial. The High Court referred to the definition of the sexual assault under section 7 of the POCSO act “Whoever with sexual intent touches vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” In the present case, since no actual touching of the private parts of the (girl’s) body happened, the High Court ruled it would come under the third part of the definition – “any other act with sexual which involves physical contact without penetration”
Justice Ganediwala observed “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by the (witness), in the opinion of this Court, does not fit in the definition of ‘sexual assault’.” However, the court ruled that the offence of sexual harassment under IPC Sec. 354 (A) (1) (i) that deals with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, is attracted.
The key ingredients of the definition were unfulfilled and the evidence produced were not enough to contain the accused liable under the POCSO act. Breaking down the activities of the accused and coinciding them with definition under section 7 of the POCSO act tell us the accused falls under “any other act with sexual which involves physical contact without penetration” this part of definition. As per the court the accused has served the quantum of punishment for which he was liable. Although the relevant section of IPC are attracted and the punishment prescribe by law is 3 years imprisonment.
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Accordingly, the high court set aside the appellant-accused’ conviction under the POCSO Act Sec. 8, 10, 12, but pronounced him guilty under the IPC Sec. 354(A)(1)(i) which attracts a maximum of three years jail term. Justice Ganediwala said that since the appellant-accused had already undergone five months in jail, it was sufficient for the offence and directed him to be set free if not wanted in any other cases.
CONCLUSION: The paradigm shift in jurisprudence of sexual offences has shocked many activist and jurist. According to the majoritarian view leaving out the above stated slated activities can cause many casualties in this respect and stats remind us about the caution and deliberation needed when it comes to cases pertaining sexual offences whether grave or trivial. Since any matter of violating against the will is not trivial and should be dealt with utmost care and prudence.
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This post is written by Abhishek Pathak
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