In another divisive ruling, the Nagpur bench of the Bombay High Court held that the act of opening the zip of pants does not come under the ambit of "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act 2012.
The ruling, pronounced by Justice Pushpa Ganediwala, noted that "the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault”. The act would instead amount to "sexual harassment" under Section 354-A (1) (i) of the Indian Penal Code, the single-judge bench observed.
The ruling was given in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl. The Supreme Court ruled it to be "aggravated sexual assault", punishable by law under Section 10 of POSCO. The man was sentenced to five years of imprisonment and a fine of Rs 25,000.
Justice Ganediwala, however, set aside his conviction under Sections 8, 10 and 12 of POCSO Act. The Nagpur bench observed that the case comes under the purview of "sexual harassment".
“The offence 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,” it said.
The man was held him guilty under Section 354A (1) (i) IPC, which mandates maximum imprisonment of three years.
In the complaint lodged by the victim's mother, she said she saw the accused with his zip opened holding the hands of her daughter. The mother also testified that the accused removed his penis from the pant and asked the daughter to come to bed for sleeping, as told by her daughter.
While ruling on the appeal, Justice Gandewala noted that "sexual assault" as defined under Section 7 of POSCO says, "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 Nagpur bench had drawn criticism for another judgment earlier this month. In a January 19 ruling, it had said that groping a minor's breast without "skin-to-skin contact" cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
The Supreme Court on Wednesday stayed the Bombay High Court's controversial order, with the Attorney General KK Venugopal further noting that the order would set a "dangerous precedent."
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