POSCO Judgment on Minor Groping by Bombay High Court

Last Updated on February 23, 2021 by Satish Mishra

In this post we will discuss about the controversial judgment of Bombay High Court in which it stated that “skin to skin” contact is necessary to prove Sexual Assault.

Holding minor’s hand, unzipping pants not sexual assault under POCSO: Bombay HC

In this post we’ll read about the judgement passed by Bombay high court setting the magnitude of the sexual assault to held accused liable for the said act mentioned.

FACTS

In the January 15 ruling, the bench noted that on February 12, 2018, the mother of a 5-year-old girl had filed a police complaint a day after she found Kujur holding the hands of her daughter and taking her into a room while his trousers were unzipped.

As per the police complaint, when the mother left for work, her two daughters – aged around three and five years – were alone in the house. Her husband was out of station. She alleged that on returning home, she saw a man holding the hands of her elder daughter. As she raised an alarm and her neighbours gathered, the accused ran away.

The mother said in the complaint that her daughter told her that the accused had removed his private part from his unzipped trousers and asked her to come to the bed to lie down with him. The woman added that she had also noticed that the accused’s trouser zip was undone. The case went to the court and the accused was held liable for the act. On October 5, 2020 order of a Gadchiroli court, which convicted LibnusKujur (50) of offences under sections 354-A (sexual harassment) and 448 (house trespass) of the IPC, along with sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act.

The appeal was made against the said order in the Bombay high court.

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LEGAL STANPOINT

Section-354A is-: A man committing any of the following acts—physical contact and advances involving unwelcome and explicit sexual overtures; ora demand or request for sexual favours; orshowing pornography against the will of a woman; ormaking sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Under POCSO-:

The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

The HC noted that as per the definition of “sexual assault” under POCSO Act, “‘physical contact with sexual intent without penetration” is an essential ingredient for the offence.

In light of this, the court observed, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’, as has been allegedly witnessed by the prosecution witness, in the opinion of this court, does not fit in the definition of ‘sexual assault’.”

Noting that the minimum sentence for the offence of sexual assault is five years of imprisonment, it observed, “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 read with Section 12 of the POCSO Act is proved against the appellant.”

The court said it was modifying the sentence and noted that Kujur has so far undergone five months in prison. Justice Ganediwala said, “Considering the nature of the act, in the opinion of this court, the imprisonment which he has already undergone would serve the purpose.”

Disposing of the criminal appeal, Justice Ganediwala added: “The sentence is modified to the extent he has already undergone. As the appellant/accused is in custody, he shall be set free, if he is not required in any other criminal case.”