A single bench of Justice Pushpa Ganediwala made this observation while passing an order on an appeal filed by a 50-year-old man.
Holding the hands of a minor girl and opening the zip of his pants does not fall under the purview of ‘sexual assault’ or ‘aggravated sexual assault’ of the Protection of Children from Sexual Offences (POCSO) Act, the Nagpur bench of the Bombay High Court has ruled, in what is seen as another controversial judgement by the same bench in this month.
A single bench of Justice Pushpa Ganediwala made this observation on January 15 while passing an order on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl, NDTV reported.
Libnus Kujur was convicted in October 2020 under 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.
Justice Ganediwala, in her judgement, observed that while the prosecution has established that the accused entered the house of the girl with an intention to outrage her modesty or sexually harass her, it has not been able to prove the charge of ‘sexual assault’ or ‘aggravated sexual assault’.
The definition of “sexual assault” under the POCSO Act, the High Court noted, says that there has to be “physical contact with sexual intent without penetration”.
Justice Ganediwala said: “The acts of ‘holding the hands of the prosecutrix (victim)’, or ‘opened 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’.”
The facts of the present case are not sufficient to fix the criminal liability on the accused (Kujur) for the alleged offence of aggravated sexual assault, the court observed in its order.
“At the most, the minor offence 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.
Kujur, according to the prosecution’s case, had on February 12, 2018 entered the house of the victim when her mother had gone to work.
Her mother, after returning from work, found the accused holding the hand of her daughter with the zip of his pants open.
While recording her evidence in the lower court, the mother had said that her daughter had informed her that the accused person had removed his private part from the pant and asked the victim to come to bed for sleeping.
Though the court ended Kujur’s conviction under sections 8 and 10 of POCSO Act, it upheld his conviction under the other sections.
However, the court said it was modifying the sentence and noted that Kujur has so far undergone five months in prison.
“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 observed.
The accused shall be set free if he is not required in any other case, the court said.
Another judgment passed by Justice Ganediwala this month had faced a severe backlash, in which she had acquitted a 39-year-old man for groping a minor girl, noting that there was no “skin-to-skin contact with sexual intent”.
On Wednesday, the apex court stayed the operation of this order after Attorney General KK Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay High Court.
As an independent media platform, we do not take advertisements from governments and corporate houses. It is you, our readers, who have supported us on our journey to do honest and unbiased journalism. Please contribute, so that we can continue to do the same in future.
