Bombay High Court: Opening Pant Zip, Holding Child's Hand Not Sexual Assault Under POCSO

MUMBAI: The Bombay High Court has ruled that holding a minor's hands and unzipping one's pants in front of a minor will not fall under the definition of sexual assault or aggravated sexual assault under the Protection of Children from Sexual Offences (POSCO) Act.

The judgement was held by a single judge bench of Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court while hearing a criminal appeal filed against the conviction and sentence given to a 50-year-old man for molesting a five-year-old girl.

Since the victim of the case was below 12 years, the Sessions Court said the act was 'aggravated sexual assault' punishable under Section 10 of POCSO. The perpetrator was sentenced to five years in prison and the judge imposed a fine of Rs 25,000 with a default simple imprisonment for 6 months.

A complaint was filed by the child's mother, who said she saw the accused, Libnus Kujur, with his pants unzipped and holding her daughter's hands. The mother also said her daughter informed her that the accused removed his penis from his pants and asked her to come to bed to sleep.

Justice Ganediwala had earlier cleared a man found guilty of assault under POCSO on the grounds that groping without "skin-to-skin contact" does not constitute as sexual assault.

Justice Ganediwala noted that Section 7 of the POCSO Act states, "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 judge said according to the definition of sexual assault, a "physical contact with sexual intent [and] without penetration" is an essential ingredient for the offence. The High Court opined that the act would fall under the ambit of the third part of the definition – "any other act with sexual intent which involves physical contact without penetration" since the accused did not touch the victim's private parts.

The high court overturned the accused's conviction under sections 8 and 10 of POCSO Act, but upheld his sentence under the other sections. The court changed the sentence and noted that Kujur has so far undergone five months in prison.

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 adequate to fix the criminal charge on the accused for the alleged felony of aggravated sexual assault.

The court said that the only minor offence punishable under section 354-A(1)(i) of the IPC read with section 12 of the POCSO Act is proved against the petitioner, Kujur.

On Wednesday, The Supreme Court put on hold the previous order passed by Justice Ganediwala on January 19 after Attorney General KK Venugopal made a special mention in court, saying the High Court decision would set a very risky precedence while punishing sexual offenders.

On January 25, the National Commission for Protection of Child Rights had implored the Maharashtra government to file an urgent appeal against the Bombay High Court's interpretation of what constitutes as sexual assault of a minor. The children's rights body said the language of the judgement needed to be reviewed at the earliest as it was derogatory to the minor.

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