GUWAHATI: The Nagpur bench of the Bombay High Court has held that holding hands of a minor girl and opening the zip of pants is not a 'sexual offence' as per definition under the Protection of Children from Sexual Offence Act, 2012. However, the same will be considered 'sexual harassment' under Section 354-A (1)(I) of the Indian Penal Code.
This was held by a single bench of the Bombay HC comprising Justice Pushpa Ganediwala, who noted that as per Section 7 of the POCSO Act, 'sexual assault' is defined as, "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 which involves physical contact without penetration is said to commit sexual assault".
The order came in response to a criminal appeal filed against the conviction of a 50-year-old man for molesting a 5-year-old girl, 12 years ago. The mother of the victim had lodged a complaint stating that she had seen the man holding her daughter's hand and open his pant's zip. She also testified that the child had said that the accused had called her to bed and had removed his penis from his pants.
{{1JKAHm6ZN9ug7kPG2KMK}}
Earlier, the session court had convicted the appellant under Section 10 of the POCSO Act and sentenced him to 5 years of rigorous imprisonment and fine of Rs. 25000 with a default simple imprisonment of 6 months.
The court held that the allegations were not sufficient to fix criminal liability on the accused under Section 10 of POCSO, however convicting him under IPC, which carries a maximum imprisonment of 3 years. The Court held that the 5 months imprisonment already underwent by the accused was sufficient punishment for the offence.
Notably, the same judge had on January 19 held that fondling the breast of a minor without 'skin to skin contact' cannot be termed as sexual assault under the POCSO Act, which was later stayed by the Supreme Court.
The apex court of the country has even permitted the Attorney General to file an appeal against the earlier order.