In another shocking ruling, the Nagpur bench of the Bombay High Court has held that “the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012. Yes, you read that right. 

Holding girl's hand, unzipping pants doesn't fall under purview of 'sexual assault' or 'aggravated sexual assault' of POCSO Act; at the most, it falls under 'outraging modesty', 'sexual harassment': Bombay HC

— Press Trust of India (@PTI_News) January 28, 2021

Instead, the act comes under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code, observed the bench.

Here’s what happened

The ruling was pronounced by a single bench of Justice Pushpa Ganediwala in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl.

The Nagpur bench of the Bombay High Court ruled that holding the hands of a minor girl and opening the zip of her pants does not fall under the purview of 'sexual assault' or 'aggravated sexual assault' of the Protection of Children from Sexual Offences (POCSO) Act.

The observation was made by a single bench of Justice Pushpa Ganediwala on January 15 while passing an order on an appeal filed by a 50-year-old man challenging a sessions court's order convicting him for sexually assaulting and molesting a five-year-old girl.

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

In her judgement, Justice Ganediwala noted that while the prosecution has established that the accused entered the house of the girl with an intention to outrage her modesty or sexually harass her, it has not been able to prove the charge of 'sexual assault' or 'aggravated sexual assault'.

The high court noted that the definition of "sexual assault" under the POCSO Act says that there has 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 girl), in the opinion of this court, does not fit in the definition of 'sexual assault'," Justice Ganediwala said.

The high court further said that the facts of the present case are not sufficient to fix the criminal liability on the accused (Kujur) 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 said.

Here’s how people reacted to this on Twitter:

Just want to the image of this judge !!!!

— suchetan roy (@suchetanroy1) January 28, 2021

Looks like he is from Sanghi Parivar

— suchetan roy (@suchetanroy1) January 28, 2021

Who is the judge?

— Rajagopalan T (@RajagopalanT1) January 28, 2021

Seems like Bombay Court is High on Something else...

— Too Much Democracy (@L0ST_IN_CINEMA) January 28, 2021

With due apology, this decision - order will disturb law & order situation in society and will promote such more violence.
Plus I feel it's a indirect insult to ladies.
Some womens wing should appeal against this judgement.
Sorry if words did hurt anyone. #WomensRights #women

— Manish Dewan (@manishdewan) January 28, 2021

Excuse me? Anything against a person's consent should be considered an assault. And is that gonna be given a free pass? 'Cause honestly rape victims aren't getting justice, even god won't know when these minor cases will be handled 🤦🏻‍♀️.

— Geetanjali (@_Geetanjali__) January 28, 2021

Pata nhiji konsa nasha karte hai...

— shivangi vats (@shivangivats13) January 28, 2021

The prosecution's case is that Kujur had on February 12, 2018 entered the house of the victim when her mother had gone to work. When the mother returned from work, she found the accused holding the hand of her daughter with the zip of his pants open.

The mother, while recording her evidence in the lower court, had said that her daughter had informed her that the accused person had removed his private part from the pant and asked the victim to come to bed for sleeping.

The high court ended Kujur's conviction under sections 8 and 10 of POCSO Act, but upheld his conviction under the other sections.

Another judgment passed by Justice Ganediwala this month acquitting a 39-year-old man for groping a minor girl, noting that there was no "skin-to-skin contact with sexual intent" has faced severe flak.

The Supreme Court had, on Wednesday, stayed operation of this order after Attorney General KK Venugopal mentioned the matter submitting that it was a very “disturbing conclusion” by the Bombay High Court.

What are your thoughts on this? Don’t forget to tell us in the comments below. 

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