that holding a minor girl’s hand and opening her pants zip cannot be termed as ‘sexual assault’ under the Protection of Children from Sexual Offences Act 2012. Such acts would amount to sexual harassment under Section 354 of the Indian Penal Code, the court said.
The court’s findings came from a single bench of Justice Pushpa Ganediwala, who was hearing a case in a criminal appeal filed against the conviction and sentence awarded to a 50 year old man for molesting a 5 year old girl.
The trial court had sentenced the convict to 5 years rigorous imprisonment and a fine of Rs 25,000 for sexual assault under Section 10 of the POCSO.
The girl’s mother had complained that the accused’s pants zip was open, and her daughter had her hands in his hands.
Explaining the term ‘physical contact’ in the definition of sexual assault, the court stated that it means “direct physical contact – that is, skin-to-skin-contact without sexual penetration.”
The court noted that the matter falls under Section 354A (1) (i) of the IPC, therefore, the sentence under Section 8, 10 and 12 of the POCSO Act was repealed.
The man was then convicted under the section which has a provision of imprisonment for a maximum period of 3 years.
The court held that the imprisonment of 5 months already served by the accused is sufficient punishment for the offence.
Earlier on January 19, the same bench had ruled that groping a minor’s breast without “skin to skin contact” does not constitute “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Pushpa Ganediwala, in a judgment passed on January 19, held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault.
The court was hearing a petition by Satish, who was convicted by a local court under Sections 354, 363 (kidnapping) and 342 (wrongful restraint) of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault, the high court held. It, therefore, convicted the man under Section 354 of IPC (outraging a woman’s modesty) and sentenced him to undergo rigorous imprisonment for one year.
However taking cognisance of Public outcry on Social media The Supreme Court on Wednesday stayed a “disturbing” decision of the Bombay high court (HC) which held that groping a minor girl without touching her skin did not amount to sexual assault under Protection of Children against Sexual Offences (POCSO) Act.
Attorney General KK Venugopal mentioned the judgment passed by a single judge of Nagpur bench of Bombay HC on January 19.
The three-judge bench headed by CJI SA Bobde issued notice to the accused and police to reply within two weeks. “Meanwhile, we stay the acquittal of accused in regard to Section 8 of POCSO,” said the bench also comprising Justices AS Bopanna and V Ramasubramanian.