Unzipping pants, holding minor's hand not 'sexual assault' under POCSO, Bombay HC rules

The Bombay High Court (Nagpur Bench) has ruled that "unzipping pants or holding a minor's hand" does not amount to 'sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act, 2012. This came on the original complaint filed by a woman who came to her home one afternoon and found the accused with his pants unzipped flashing his private parts as he held the hand of her 5-year-old daughter and asked her to come to bed with him.

When she saw this, she hurled abuses at him after which he released her daughter, who later informed her that the accused wanted her to get into bed and sleep with him. The verdict by Justice Pushpa V. Ganediwala came in a criminal appeal against the conviction and imprisonment of one year and five-year jail plus fines under different laws, awarded to the 50-year-old man for molesting the 5-year-old girl, by the Special Judge of Special POCSO Court, Gadchiroli, in October 2020.

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Partly allowing the appeal, the Bombay HC quashed aside the jail sentence of 5 years under the POCSO Act and modified the imprisonment as per the Indian Penal Code (IPC) to the extent the appellant-accused has already served as an undertrial. While considering these aspects, the high court referred to the definition of 'sexual assault' under Sec. 7 of POCSO Act: "Whoever with sexual intent touches 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."

In the present case, since no actual touching of the private parts of the (girl's) body happened, the high court ruled it would come under the third part of the definition - "any other act with sexual which involves physical contact without penetration" Justice Ganediwala observed: "The acts of 'holding the hands of the prosecutrix', or 'opened zip of the pant' as has been allegedly witnessed by the (witness), in the opinion of this court, does not fit in the definition of 'sexual assault'."

However, the court ruled that the offence of sexual harassment under IPC Sec. 354(A)(1)(i) that deals with 'physical contact and advances involving unwelcome and explicit sexual overtures', is attracted. Accordingly, the high court set aside the appellant-accused' conviction under the POCSO Act Sec. 8, 10, 12, but pronounced him guilty under the IPC Sec. 354(A)(1)(i) which attracts a maximum of 3 years jail term. Justice Ganediwala said that since the appellant-accused had already undergone 5 months in jail, it was sufficient for the offence and directed him to be set free if not wanted in any other cases.