Bombay High Court judge quashes another POCSO conviction

Justice Pushpa Ganediwala’s order says “holding hand of victim” and “opening zip of pant” are not sexual assault.

The Nagpur Bench of the Bombay High Court on Thursday held that “The acts of ‘holding the hands of the prosecutrix’ (female victim), or ‘opened zip of the pant’ in the opinion of this Court, does not fit in the definition of ‘sexual assault’ ”, and quashed the conviction of a man under the Protection of Children from Sexual Offences Act (POCSO).

Also read | Nagpur bench of Bombay HC overturns man’s conviction under POCSO

On February 12, 2018, the mother of the minor lodged a report that the day before had she noticed Libnus Kujur, a labourer in her house, molesting her five-year-old. She saw him holding hands of her elder daughter and shouted for the neighbours to come in and the accused ran away.

The minor later told her mother that he removed his penis from the pant and asked her to come to bed for sleeping. The mother had also observed Kujur’s pant zip to be open. He was charged and convicted under sections 354A (1) (i) — physical contact and advances involving unwelcome and explicit sexual overtures and 448 — punishment for house-trespass of the Indian Penal Code (IPC) and section 8 — punishment for sexual assault, 9 (m) — whoever commits sexual assault on a child below twelve years; 10 — punishment for aggravated sexual assault, 11 (i) — utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child and 12 — punishment for sexual harassment of POCSO.

Justice Pushpa Ganediwala was hearing a criminal appeal filed by Kujur, from Gadchiroli challenging his conviction by the lower court on October 5, 2020 that sentenced him for five years.

Also read | HC order ‘bad in law’, say child rights experts

The High Court said, “The minimum sentence for this offence (punishment for aggravated sexual assault) is five years imprisonment. Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing the criminal liability on the appellant/accused for the alleged offence of ‘aggravated sexual assault’. At the most the minor offence punishable under section 354-A (1) (i) of the IPC is proved against the appellant.”

The nine-page order, passed on January 15, said, “The conviction of the appellant/accused for the offence punishable under Sections 8, 10 and 12 of the POCSO Act, is quashed and set aside. The conviction of the appellant/accused for the offence punishable under Sections 448 and 354-A(1) (i) of the IPC is maintained.”

Earlier on January 19, Justice Ganediwala had acquitted a man charged under the POCSO Act and again convicted him under ‘minor offence’ of IPC as, “There is no direct physical contact i.e skin-to-skin with sexual intent without penetration”.

The Supreme Court on Wednesday stayed that order.

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