The Nagpur bench of the Bombay High Court has ruled that holding the hands of a minor girl and opening of the zip of pants does 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 while passing an order 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 convict, Libnus Kujur, was in October 2020 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. He was sentenced to five years in jail.
In her judgement, 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''.
The high 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".
"The acts of ''holding the hands of the prosecutrix (victim)'', or ''opened zip of the pant'' as has been allegedly witnessed by the prosecution witness (mother of the victim), in the opinion of this court, does not fit in the definition of ''sexual assault''," Justice Ganediwala said.
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 offence of aggravated sexual assault.
"At the most, the minor offence punishable under section 354-A(1)(i) of the IPC read with section 12 of the POCSO Act is proved against the appellant (Kujur)," the court said.
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.
When the mother returned from work, she found the accused holding the hand of her daughter with the zip of his pants open.
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 for sleeping.
The high court quashed Kujur''s conviction under sections 8 and 10 of 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.
"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.
The court said the accused shall be set free if he is not required in any other case.
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" has faced severe flak.
The Supreme Court had on Wednesday stayed operation of this order after Attorney General K K Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay High Court.