‘Holding Hand, Unzipping Pants Not Sexual Assault’: Bombay HC
The same judge noted in an earlier ruling that ‘groping without skin contact’ is not sexual assault
The Nagpur bench of the Bombay High Court noted on 15 January that holding the hand of a minor, and unzipping one’s trousers in front of her does not come under the definition purview of ‘sexual assault’ as defined by the Protection of Children from Sexual Offences Act, 2012.
The single bench Judge, Justice Pushpa Ganediwala however held that such acts would be in the ambit of ‘sexual harassment’ under Section 354-A(1) (i) of the Indian Penal Code, reported Live Law.
The January 15 verdict was an appeal by the accused against the order, which found him guilty under Sections 354A (sexual harassment) and 448 (punishment for house trespass) under the Indian Penal Code along with Sections 8 (punishment for sexual assault), 10 (punishment for aggravated sexual assault) and 12 (punishment for sexual harassment) of the POCSO Act, reported Bar and Bench.
Consequently, the accused was sentenced to five years rigorous imprisonment and a 25,000 fine with a default simple imprisonment for six months,” Live Law reported.
This ruling comes four days after the same judge passed a controversial ruling that ‘groping without skin contact’ is not sexual assault — an order that was stayed by the SC on 27 January saying, “It sets a very dangerous precedent.”
What Was The Case?
The case was registered by the victim’s mother. According to the mother’s testimony, she returned home around 4pm from work, and saw that the accused, a 50-year-old man, was holding the hand of her eldest daughter, and trying to take her inside a room of her house. She screamed at the accused after which he set her daughter free and ran away. The mother also noticed his pant zip was open.
The mother also testified that her five-year-old daughter later informed her that the accused exposed himself and asked her to come to bed to sleep.
What The Courts Said
The court held that in its opinion, the acts of the accused were not sufficient enough to be categorised under ‘aggravated sexual assault’ of Section 9 of POCSO, punishable under Section 10, which would mean five years imprisonment.
“The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this court. does not fit in the definition of ‘sexual assault’,” reported Live Law.
The court however noted, that the offences of the accused come under the ambit of ‘sexual harrassment’ under Section 354A (1) (i), which deals with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, and has a three year imprisonment, reported Live Law.
"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,” reported Bar and Bench.
The court’s ruling set aside conviction under Sections 8, 10 and 12 of POCSO Act, and found the accused guilty under Section 354A (1)(i) IPC. The HC also reduced the sentence of the accused to time served and held that the man had served five months of imprisonment, which was sufficient punishment.
‘Groping Without Skin To Skin Contact Is Not Sexual Assault’
In another case by the same judge, the Nagpur Bench of the Bombay High Court has held that groping a child without ‘skin-to-skin contact’ would not amount to ‘sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act, according to Live Law. Instead, it would merely amount to molestation under the Indian Penal Code (IPC).
A sessions court had previously held a 39-year-old man guilty of sexual assault for groping a 12 year old, and attempting to remove her salwaar.
However, Justice Puspha Ganediwala of the Bombay High Court modified the order of the sessions court and sentenced the man under Section 354 IPC (outraging a woman’s modesty), observing that there was no ‘specific detail’ as to whether the minor’s top was removed and there was any skin-to-skin contact.
“Considering the stringent nature of punishment provided for the offence, in the opinion of this court, stricter proof and serious allegations are required,” the court said.
The court also added: “The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty.”
‘Victim’s Testimony Fails To Inspire Confidence’
In the third ruling granting acquittal this month to the accused under the Protection of Children from Sexual Offences Act (POCSO), Justice Pushpa Ganediwala reversed the conviction saying the victim’s testimony did not “inspire confidence” of the HC, and was not of “sterling quality”.
The Nagpur bench of the High Court noted that although the rape victim’s testimony is enough for a conviction, in this case, the action of the convict, who was charged under Sections 376(2) (rape) of Indian Penal Code and Section 5, 6 (aggravated penetrative sexual assault) of the POCSO Act could not be established beyond reasonable doubt, the court said, reported Bar and Bench.
(With inputs from LiveLaw and Bar and Bench)
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