Amid a raging controversy over its verdict that groping without ‘skin-to-skin’ contact is not sexual assault, the Bombay High Court has now ruled in a case that “unzipping pants or holding a minor’s hand” does not amount to sexual assault under the POCSO Act.
“The acts of ‘holding hands of the prosecutrix’, or ‘opening the zip of the pant’ as has been allegedly witnessed by the informant (PW-1), in the opinion of this Court does not fit in the definition of ‘sexual assault’,” Justice Pushpa V Ganediwala of the Nagpur bench of the Bombay High Court has ruled.
The judgement came while deciding on a criminal appeal filed by Libnus Kujur (50), a labourer from Gadchiroli, who was convicted by a lower court. He was represented by AC Jaltare. while MJ Khan was the assistant public prosecutor in the case.
The informant testified that her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping. The informant also noticed that the zip of the pants of the appellant/accused was opened.” The girl was freed after she screamed.
Reproducing what is sexual assault as per section 7, the bench noted, “Whoever, with sexual intent touches the 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.”
However, the court ruled that the offence of 'sexual harassment' under section 354(A)(1)(i) of the Indian Penal Code deals with ‘physical contact and advances involving unwelcome and explicit sexual overtures’.
Accordingly, the Nagpur bench set aside the appellant-accused’s conviction under sections 8, 10 and 12 of the POCSO Act but pronounced him guilty under the IPC, sentencing him to a 3-year jail term.
Justice Ganediwala's verdict had drawn criticism in another case in which the appellant-accused had challenged the lower order vis-a-vis sexual assault of a 12-year-old girl.
“.....in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside her top and pressed her breast, would not fall under the definition of ‘sexual assault', it would certainly fall within the definition of section 354 of the IPC, which penalises outraging the modesty of a woman.... groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault,” Justice Ganediwala had ruled. The Supreme Court has now stayed the order.