Another day, another shocking verdict by the Bombay Court came to the limelight after the Nagpur bench declared that holding a minor’s hands and unzipping pants does not constitute “sexual assault” or “aggravated sexual assault” of the POCSO Act and can only be regarded as a minor offense if anything at all.
The order was passed by Justice Pushpa Ganediwala, the single bench leading the case, on January 15th.
She was hearing the petition of a 50-year-old man sentenced to 5 years of imprisonment by a sessions court for molesting and sexually assaulting a 5-year-old girl.
In October 2020, Libnus Kujur, the convict was found guilty and charged with 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 had entered the minor girl’s house when her mother was out for work. Upon reaching, the mother said that she found the convict holding her daughter’s hands with his pants’ zip opened.
However, Justice Ganediwala found this to be a “minor offense” as she ruled that though the prosecution proved that the convict’s intention while entering the house was sexual harassment and outraging the girl’s modesty, it could not establish whether he committed the crime of sexual assault or aggravated sexual assault or not, as he was charged.
Repeating the alleged definition of a ‘sexual assault’, she stated that it is mandatory for “physical contact with sexual intent without penetration” to have occurred for the act to qualify as a sexual assault.
“The acts of ‘holding the hands of the prosecutrix (victim)’, or ‘opened the zip of the pant’ as has been allegedly witnessed by the prosecution witness (mother of the girl), in the opinion of this court, does not fit in the definition of ‘sexual assault’,” Justice Ganediwala said.
She further ruled that as the evidence presented by the prosecution isn’t enough, Kujur cannot be held guilty for the offenses.
“At the most, the minor offense 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.
Moreover, in her witness recording, the mother stated in the sessions court that her daughter told the convict had removed his private part from his pants and told her to come to sleep with him on the bed.
The High Court, hence, acquitted the accused of sections 8 and 10 of the POCSO Act and convicted him under the other sections only charged earlier.
Moreover, the judge stepped up and said that as the accused had already spent 5 months in jail, he has completed his sentence term and can now be set free if he did not be summoned in any other case.
“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.
Justice Ganediwala has come under widespread criticism since the past week after she passed a verdict relieving a 39-year-old of major charges even after he groped a minor girl, saying that it wasn’t a sexual assault as there was no “skin-to-skin contact with sexual intent”.
However, this order has been placed on hold by the SC following Attorney General KK Venugopal’s statement that the conclusion given to the case by the BHC was very “disturbing”.
