The Bench of Bombay High Court, Nagpur has said last month, that the zip of the pants of the accused being open at the relevant time of the incident or holding the hand of a minor is not to be considered as sexual assault as it is defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act (see also: Libnus v. State of Maharashtra).
Justice Pushpa Gandewali on January 15 delivered this judgment, four days after her controversial judgment on “skin-to-skin” contact being a determining factor for sexual assault under the POCSO Act. This judgment was passed on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.
The complaint was lodged by the mother of the girl accusing, that she saw the accused whose pant’s zip was opened and was holding the hand of her daughter. She further 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.
Section 7 of POCSO Act
Section 7 of POCSO Act states that: “Sexual assault – 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”.
The Court stated that the definition of ‘sexual assault’ is something that is ‘ a physical contact with sexual intention without penetration’. But the court noted that there was no such actual touching of the private parts of the body happenings in this case. The court explains the words “any other act” from the definition as should be interpreted Ejusdem Generis with the beginning portion of the definition (Ejusdem generis is a principle of statutory interpretation which says that meaning of general words which follow a specific word is limited by the meaning of the special words).
So according to the Court holding hands of a minor or unzipping of pants can not be considered as sexual assault and does not fit in its definition. According to POCSO, ‘sexual assault’, when committed against a child aged less than 12 years, it will become ‘aggravated sexual assault’ under Section 9, which is punishable under Section 10.
The Court has however considered the offense of Sexual Harassment under Section 354A(1)(i), which deals with “physical contact and advances involving unwelcome and explicit sexual overtures”, is attracted in the case.
So, therefore the court held that 5 months of imprisonment that the accused already has gone through is enough punishment to suffice.
The court states that “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”.
Reported by – Komal Dhore