Keeping Minor Girl’s Hands & Opening Pants Zip Under POCSO Act Not ‘Sexual Assault’ But ‘Sexual Harassment’ Under Section 354A IPC: Bombay HC

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The Bombay High Court (Nagpur Bench) has ruled that under the Protection of Children from Sexual Crimes Act 2012, the act of taking a minor girl’s hands and opening the zip of pants would not fall under the definition of “sexual assault”. The Court however ruled that, under Section 354-A(1)(i) of the Indian Penal Code, such actions would amount to ‘sexual harassment.’

On January 15, a single bench of Justice Pushpa Ganediwala passed an order on an appeal filed by a 50-year-old man appealing the order of a session court convicting him of sexually assaulting and molesting a five-year-old child (Libnus v State of Maharahstra).

In October 2020, Libnus Kujur was convicted in connection with sections 354-A(1)(i) (outrageous modesty of a women) and 448 (house-trespass) of IPC, 12 (sexual harassment) and sections 8 (sexual assault), 10 (aggravated sexual assault) and of POCSO Act. They sentenced him to five years in prison.

Since the crime was committed against a child under 12 years of age, the Sessions Court held that it was “aggravated sexual assault” punishable under POCSO Section 10 and sentenced him to five years of strict imprisonment and a fine of Rs. 25,000 with 6 months of plain default imprisonment. 

The case was reported on the grounds of a lawsuit filed by the girl’s mother, who claimed she saw the defendant, whose pants zip had been opened, grasping her daughter’s hands. She also testified that she was told by her daughter that the appellant/accused removed his penis from the pant and instructed her to sleep in bed.

The high court observed that under section 7 of the POCSO Act, the concept of “sexual assault” specifies that there has to be “physical contact with sexual intent without penetration.

Section 7 of the POCSO Act reads as, “Whoever touches the child’s VAGINA, PENIS, ANUS, or BREAST or makes the child touch the vagina, penis, anus or breast of such person or any other act with sexual intent involving physical contact is said to commit “sexual assault.”

Since no actual touching of the private parts of the body occurred in the case, the High Court considered whether the act would fall within the scope of the case. The third part of the definition is “any other Act with sexual intent which involves physical contact without penetration”. 

The Court stated that the words “any other act” should be interpreted with the beginning portion of the definition ejusdem generis (Ejusdem Generis is a principle of statutory interpretation which says that meaning of general words that follow a specific word is limited by the meaning of the special words).

Court held that,

“In the view of this court, the acts of ‘holding the hands of the prosecutor (victim)’ or ‘opened zip of the pant’ as reportedly observed by the prosecution witness (mother of the girl), do not fall into the definition of ‘sexual assault,’ said Justice Ganediwala. 

According to POCSO,’ sexual assault’ becomes ‘aggravated sexual assault’ under Section 9 when committed against a minor younger than 12 years of age, which is illegal under Section 10.

Furthermore, the High Court held that the details of the present case were not adequate to assess the criminal responsibility of the accused (Kujur) for the alleged crime of ‘aggravated sexual assault’ with a minimum penalty of five years of imprisonment, and the Court stated that the charges were not sufficient under Section 10 of the POCSO to determine the criminal liability of the accused for that offence.

Under Sections 8, 10, and 12 of the POCSO Act was then set aside and the defendant was found guilty under Section 354A(1)(i) of the IPC, which holds a penalty of 3 years in prison. The Court held that the sentence of five months already imprisoned by the accused was adequate to punish the crime.

Skin-to-skin Judgement

The same judge held in another judgment that for ‘sexual assault’ under POCSO, direct skin to skin touch was required. That was a case in which the accused had groped a 12-year-old girl’s breasts without removing her clothes (Satish v State of Maharashtra). 

In the opinion of this Court, stricter evidence and serious allegations are required in view of the strict nature of punishment provided for the offence (under POCSO). In the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, the act of pressing the child’s breast aged 12 years would not fall into the definition.’

However, in that case, the Court found the accused guilty of the offense of ‘outraging the modesty of women’ under Section 354 of IPC, which compared to Section 8 of POCSO, carries a lesser sentence. Under section 8 of the POCSO Act, ‘sexual assault’ would attract a minimum penalty of three years compared to outrage against the modesty of a woman under section 354 of the IPC, which attracts a minimum penalty of only one year. Both offenses carry a maximum of five years’ imprisonment.

This decision caused widespread public indignation and condemnation. This judgment was brought to the Supreme Court’s attention on Wednesday (January 28) by the Attorney General for India, K K Venugopal. The AG claimed that the decision was “unprecedented” and that it would create a “dangerous precedent” on the grounds of the reference rendered by the AG. According to the judgment, a bench led by the Chief Justice of India maintained the acquittal under the POCSO Act.

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‘Law is not law if it violates the principles of eternal Justice’ very beautifully penned down by Lydia Maria Child and I strongly believe, if the law is not made for the goods of people then at least it should not violate the essence of the principle of law that is “JUSTICE”. Law is made to keep each section of society on an equal platform and being a member of the law fraternity, I will try to contribute to the welfare of society. I am Purnima and I graduated from zoology (Hons) and am currently pursuing a law degree from Lloyd law college, Greater Noida. My desire is to bring a fair and unjust environment to our society through my hard work and persistent efforts.