Opening pant's zip not sexual assault under POCSO: High Court
What's the story
The Nagpur bench of the Bombay High Court has ruled that holding the hands of a minor girl and opening the zip of pants do not fall under the purview of "sexual assault" or "aggravated sexual assault" of the Protection of Children from Sexual Offences (POCSO) Act.
The observation was made by a single bench of Justice Pushpa Ganediwala on January 15.
Appeal
The order was passed on an appeal by Libnus Kujur
The bench was passing an order on an appeal by Libnus Kujur (50) challenging a Sessions Court's order convicting him for sexually assaulting and molesting a five-year-old girl.
Last October, Kujur was convicted under Sections 354-A (1)(i) (outraging modesty) and 448 (house-trespass) of the IPC and Sections 8 (sexual assault), 10 (aggravated sexual assault), and 12 (sexual harassment) of the POCSO Act.
Information
Charge of sexual assault not proven, says Justice Ganediwala
Justice Ganediwala noted that while the prosecution has established that the accused entered the house of the victim with an intention to outrage her modesty or sexually harass her, it has not been able to prove the charge of "sexual assault" or "aggravated sexual assault."
Judgment
Definition of assault does not fit with the convict's actions
The court noted that the definition of "sexual assault" under the POCSO Act says that there has to be "physical contact with sexual intent without penetration."
Justice Ganediwala said that although the victim's mother allegedly witnessed the acts of holding the hands of the victim or opening the zips of the pant, the court does not fit it in the definition of sexual assault.
Details
The court's further judgment on Kujur's case
The High Court further said that the facts of the present case are not sufficient to fix the criminal liability on the accused (Kujur) for the alleged offense of aggravated sexual assault.
"At the most, the minor offense punishable under section 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act has been proved against the appellant (Kujur)," the court said.
Case
The prosecution's case and eyewitness account
The prosecution's case is that Kujur had on February 12, 2018, entered the house of the victim when her mother had gone to work.
The mother, while recording her evidence in the lower court, had said that her daughter had informed her that the accused person had removed his private part from the pant and asked the victim to come to bed.
Charges
Under which charges will Kujur be convicted?
The High Court quashed Kujur's conviction under Sections 8 and 10 of the POCSO Act but upheld his conviction under the other sections.
The court, however, said it was modifying the sentence and noted that Kujur has so far undergone five months in prison.
The HC said the accused shall be set free if he is not required in any other case.
Quote
'The imprisonment which he has undergone would serve the purpose'
"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," the court said.
Previous judgment
A similar judgment passed by Justice Ganediwala faced severe flak
To recall, another judgment passed by Justice Ganediwala this month acquitting a 39-year-old man for groping a minor girl, noting that there was no "skin-to-skin contact with sexual intent" had faced severe flak.
The Supreme Court had on Wednesday stayed the order after Attorney General KK Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay High Court.