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Bombay High Court : Holding hands, unzipping pants no sexual assault under POCSO

The Nagpur bench of the Bombay High Court has ruled that holding a girl’s hands and unzipping trousers does not fall under the category of ‘Sexual Harassment’ or ‘Sexual Harassment’ of Children’s Sexual Offenses (POCSO) Act.

This was stated by one bench of Justice Pushpa Ganediwala on January 15 when he appealed a petition filed by a 50-year-old man challenging a court order convicting him of sexually abusing and abusing a 5-year-old girl. .

Convicted, Libnus Kujur, October 2020 convicted under sections 354-A (1) (i) (offensive modesty) and 448 (offenses) of the IPC and sections 8 (sexual harassment), 10 (sexually abused ) and 12 (sexual harassment) of the POCSO Act. He was sentenced to five years in prison.

In his ruling, Justice Ganediwala noted that when the prosecutor found out that the suspect had entered the victim’s home with the intention of provoking or sexually assaulting her, he could not prove the charge of ‘sexual harassment’ or ‘sexual assault’.

Bombay High Court : Holding hands, unzipping pants no sexual assault under POCSO
Bombay High Court : Holding hands, unzipping pants no sexual assault under POCSO

The Supreme Court noted that the definition of “sexual harassment” under the POCSO law states that there should be “physical contact with sexual intent without penetration”.

“The act of ‘holding the hand of the prosecutor (victim)’, or ‘unzipping the pants’ as stated by the prosecutor’s witness (mother of the deceased), in the opinion of this court, are not appropriate in the definition of ‘sexual harassment’,” said Judge Ganediwala.

The High Court further stated that the facts of the case were not enough to justify a criminal case against the accused (Kujur) on a charge of sexual harassment.

“At the very least, a minor offense punishable under section 354-A (1) (i) of the IPC read with section 12 of the POCSO Act is attested by the opposing person (Kujur),” the court said.

Prosecutors’ case alleges that Kujur on February 12, 2018 entered the victim’s house while his mother was on duty.

When the mother returned from work, she found the suspect holding his daughter’s hand and unzipping her trousers.

The mother, while recording her testimony in the lower court, said her daughter had informed her that the accused had removed her genitals from her pants and asked the victim to go to bed.

The high court overturned Kujur’s sentence under sections 8 and 10 of the POCSO Act, but upheld his sentence under other sections.

The court, however, said it was reversing the sentence and noted that Kujur had already spent five months in jail.

“Given the nature of the action, which may be instituted by prosecutors and the imposition of punishment for these alleged crimes, in this Court’s view, the arrests they already have will serve a purpose,” the court said.

The court said the accused would be released if he was not wanted in any other case.

Another verdict handed down by Judge Ganediwala this month released a 39-year-old man for holding a young girl, noting that there was no “skin-to-skin sexual contact” under great pressure.

The High Court was no longer valid on Wednesday after Attorney General K K Venugopal referred to the matter as a decision that severely affected the Bombay High Court.

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