Not “Sexual Assault” below POCSO, however “Sexual Harassment” below IPC, when a person opens his pants zipper in entrance of a minor lady and holds her palms
The Bombay Supreme Court ruled that an act of obstructing underage girls’ hand movement and unzipping their trousers would not constitute “sexual assault” for the purposes of the 2012 Child Protection from Sexual Offenses Act.
The court found that the same act would attract Section 354A (1) (i) of the Indian Criminal Code, which defines the offense of “sexual harassment”.
That conclusion was drawn by a single judge’s bench when criminal proceedings were initiated against the conviction and conviction of a 50-year-old man for molesting a 5-year-old girl.
The case was registered and started following a complaint from the girl’s mother, who saw the defendant with pants open and was holding her daughter’s hands.
She further testified that her daughter had told her that the defendant had taken his penis out of his pants and asked her to accompany him to bed to sleep.
The trial court held the defendant’s act to be “exacerbated sexual assault” as it was committed on a girl under the age of 12. It held him punishable under Section 10 of the POCSO Act.
However, the Bombay Supreme Court interpreted the definition of “sexual assault” required by the POCSO law, stating that “physical contact with sexual intent without penetration” is an integral part of defendant liability.
In the absence of the same in the present case, the court found that the allegations were insufficient to satisfy the requirement of Section 10 of the POCSO.
In addition, the Bombay Supreme Court used the rule of ejusdem generis to interpret the words “any other act” in Section 10 and found that it must be interpreted according to the first half of the definition.
The court overturned the conviction under sections 8, 10 and 12 of the POCSO Act and found him guilty under section 354A (1) (I) of the IPC as the definition of sexual harassment that deals with “physical contact and advances that are undesirable and explicit are “concerned with sexual overtures” is drawn to the present case.
As a result, the applicant / accused’s sentence was reduced from 5 years to 3 years imprisonment, of which he had already been imprisoned for 5 months.