Holding girl’s hands, opening pant’s zip no sex assault: HC

The Nagpur bench of the Bombay high court, whose judgment — “no offence under POCSO is made out if there was no skin-to-skin touch” — in an another judgment passed earlier this month acquitted a man from provision of POCSO observing that holding a child's hand and unzipping pants do not amount to sexual assault.

The prosecution’s case is that on February 12, 2018, the mother of a five-year-old girl lodged a complaint at Gadchiroli police station that when she returned home, she noticed the accused was in her house and was holding hands of her daughter.

The complainant also noticed that the accused’s pant zip was open. She started shouting and the accused ran away.

Later, the victim told her that the accused had unzipped his pant and asked her to come to the bed to sleep.

● JUSTICE PUSHPA Ganediwala decided the appeal on January 15 held that, ‘The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1 (girl’s mother), in the opinion of this court, does not fit in the definition of ‘sexual assault’.’ In a detailed judgment, she said that the accused is prosecuted for the charge of 'aggravated sexual assault’.

The Nagpur bench of the Bombay high court, whose judgment on “no offence under POCSO is made out if there was no skin-to-skin touch”, in an another judgment passed earlier this month acquitted a man from provision of POCSO observing that holding a child's hand and unzipping pants do not fall under the POCSO Act.

The prosecution case is that on February 12, 2018 the mother of five-year-old lodged a complaint at Gadchiroli police station that when she returned from her duty, she noticed the accused was in her house and was holding hands of her daughter. The complainant also noticed that the zip of the pant of the accused was open. She started shouting at the accused and soon her neighbours also gathered, but the accused ran away. Later, the victim told her that the accused had unzipped his pant and asked her to come to the bed to sleep.

The trial court convicted the accused under two different counts and sentenced him to suffer rigorous imprisonment for one year and five years, concurrently.

The accused challenged this judgment before the high court and Justice Pushpa Ganediwala decided the appeal on January 15, in which she held that, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1 (the girl’s mother), in the opinion of this court, does not fit in the definition of ‘sexual assault’.”

In a detailed judgment the judge said that the accused is prosecuted for the charge of 'aggravated sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is essential ingredient for the offence. The definition starts with the words “Whoever

with sexual intent touches the 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…...’

According to the judgment 'the words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis (of the same kind).' The act should be of the same nature or closure to that. Hence the judge said, “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’.”

“The minimum sentence for this offence 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 r/w Section 12 of the POCSO Act is proved against the appellant,” the court held. With the above observations the court reduced his sentence to one year.