India

Holding minor’s hands, unzipping pants not sexual assault: HC

A Bombay excessive court docket decide, who confronted flak for acquitting a person of groping a 12-year outdated women breast as a result of he did not make skin-to-skin contact, had dominated 4 days earlier that holding the arms of a five-year-old lady and unzipping his pants do not quantity to ‘sexual assault’ beneath the Protection of Children from Sexual Offences (POCSO) Act.

A single bench of Justice Pushpa Ganediwala made the remark on January 15 whereas ruling on an attraction by a 50-year-old man difficult a classes court docket order convicting him for sexually assaulting and molesting the 5-year-old lady.

Another judgment handed by Justice Ganediwala on January 19 acquitting a 39-year-old man for groping a minor lady, noting that there was no “skin-to-skin contact with sexual intent” has confronted extreme flak.

The Supreme Court had on Wednesday stayed operation of that order after Attorney General Okay Okay Venugopal talked about the matter submitting that it was a really disturbing conclusion by the Bombay excessive court docket.

The 50-year-old Libnus Kujur was convicted beneath sections 354-A (1)(i) (outraging modesty) and 448 (home trespass) of the IPC and sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act in October 2020 and sentenced to five years in jail.

 

In her order, Justice Ganediwala famous that whereas the prosecution has established that the accused entered the home of the sufferer with an intention to outrage her modesty or sexually harass her, it has not been in a position to show the cost of ‘sexual assault’ or ‘aggravated sexual assault’.

She famous that the definition of “sexual assault” beneath the POCSO Act says that there needs to be “physical contact with sexual intent without penetration”.

“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 victim), in the opinion of this court, does not fit in the definition
of ‘sexual assault’,” Justice Ganediwala stated.

The court docket stated the case details are inadequate to repair the legal legal responsibility on the 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 (Kujur),” the court docket stated.

The prosecution’s case is that Kujur had on February 12, 2018 entered the home of the sufferer when her mom had gone to work and on her return discovered the accused holding the hand of her daughter and his pants unzipped.

While recording proof within the decrease court docket, she had additionally stated that her daughter claimed the accused requested her to sleep with him.

The excessive court docket quashed Kujur’s conviction beneath sections 8 and 10 of POCSO Act, however upheld his conviction beneath different sections. It stated it was modifying the sentence and famous that Kujur has been in jail 5 months.

“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 docket stated, including the accused shall be let loose if he’s not required in another case.

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