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Taking the girl’s hands, unzipping her pants, there is no sexual assault under POCSO: HC | India News

NAGPUR: The Nagpur Court of Bombay High Court has ruled that holding a minor’s hand and unzipping her pants does not fall within the scope of ‘sexual assault’ or ‘aggravated sexual assault’ of the Child Protection of Sexual Offenses Law (POCSO).
The observation was made by a single bench of Judge Pushpa Ganediwala on January 15 while approving an order on an appeal filed by a 50-year-old man challenging a session court order convicting him of sexually assaulting and sexually abusing a woman. five year old girl. .
The convict, Libnus Kujur, was convicted in October 2020 under sections 354-A (1) (i) (outrageous modesty) and 448 (burglary) of the IPC and sections 8 (sexual assault), 10 (sexual assault). aggravated) and 12 (sexual harassment) of the POCSO Act. He was sentenced to five years in jail.
In her sentence, Judge Ganediwala pointed out that although the prosecution has established that the accused entered the victim’s house with the intention of outraging her modesty or sexually harassing her, she has not been able to prove the charge of ‘sexual assault’ or ‘assault aggravated sexuality ”.
The higher court noted that the definition of “sexual assault” under the POCSO says that there must be “physical contact with sexual intent without penetration.”
“The acts of ‘taking the accuser (victim) by the hand’, or ‘unzipping the pants’ as allegedly has been witnessed by the prosecution witness (mother of the victim), in the opinion of this court, do not fit in the definition of ‘sexual assault,’ “Judge Ganediwala said.
The higher court further said that the facts of the present case are not sufficient to determine the criminal responsibility of the accused (Kujur) for the alleged crime of aggravated sexual assault.
“At most, the misdemeanor punishable under section 354-A (1) (i) of the IPC read with section 12 of the POCSO Act is proven against the appellant (Kujur),” the court said.
The case of the prosecution is that Kujur entered the victim’s house on February 12, 2018 when his mother had gone to work.
When the mother returned from work, she found the accused holding her daughter’s hand with the zipper of his pants open.
The mother, when registering her evidence in the court of first instance, had said that her daughter had informed her that the defendant had removed the intimate part of his pants and had asked the victim to lie down to sleep.
The high court overturned Kujur’s conviction under sections 8 and 10 of the POCSO Act, but upheld his conviction under the other sections.
However, the court said it was modifying the sentence and noted that Kujur has so far spent five months in prison.
“Considering the nature of the fact, which could be established by the prosecution and considering the penalty provided for the aforementioned crimes, in the opinion of this Court, the prison sentence that he has already suffered would serve for it,” said the court.
The court said the defendant will be released if not required in any other case.
Another ruling issued by Judge Ganediwala this month that acquitted a 39-year-old man of groping a minor, noting that there was no “skin-to-skin contact with sexual intent” has faced serious criticism.
On Wednesday, the Supreme Court had suspended the application of this order after Attorney General KK Venugopal raised the matter claiming it was a very disturbing finding by the Bombay High Court.

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