A Bombay high court judge, who faced flak for acquitting a man of groping a 12-year old girls breast because he did not make skin-to-skin contact, had ruled four days earlier that holding the hands of a five-year-old girl and unzipping his pants do not amount to 'sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act.
A single bench of Justice Pushpa Ganediwala made the observation on January 15 while ruling on an appeal by a 50-year-old man challenging a sessions court order convicting him for sexually assaulting and molesting the 5-year-old girl.
Another judgment passed by Justice Ganediwala on January 19 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 that order after Attorney General K K Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay high court.
The 50-year-old Libnus Kujur was 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 in October 2020 and sentenced to 5 years in jail.
In her order, Justice Ganediwala noted that while the prosecution has established that the accused entered the house of the victim 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'.
She 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 victim), in the opinion of this court, does not fit in the definition
of 'sexual assault'," Justice Ganediwala said.
The court said the case facts are insufficient to fix the criminal liability on the accused 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.
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 and on her return found the accused holding the hand of her daughter and his pants unzipped.
While recording evidence in the lower court, she had also said that her daughter claimed the accused asked her to sleep with him.
The high court quashed Kujur's conviction under sections 8 and 10 of POCSO Act, but upheld his conviction under other sections. It said it was modifying the sentence and noted that Kujur has been in jail five months.
"Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose," the court said, adding the accused shall be set free if he is not required in any other case.