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Opening zip of pants does not fall under the definition of sexual assault under the POCSO Act: Bombay High Court

The Bombay High Court issued an order that altered the appellant’s conviction for sexually assaulting a minor child by partially quashing his conviction for sexual assault and aggravated sexual assault through Justice Pushpa V. Ganediwala in the case of Libnus v. State of Maharashtra (CRIMINAL APPEAL NO. 445 OF 2020)

FACTS OF THE CASE:

The informant, the prosecutrix’s mother, had gone to work and when she returned home, she discovered the appellant/accused assaulting her young daughter, who was around 5 years old. The informant further alleged that she observed the accused touching the hands of her eldest daughter. The informant’s daughter reported that the accused took his penis from his trouser and invited her to join him in bed to sleep.

The appeal challenged the decision in which the appellant/accused was convicted for the offence under Sections 354-A(1)(i) and 448 of the Indian Penal Code, 1860, as well as Sections 8, 10, and 12 read with Sections 9(m) and 11(i) of the Protection of Children from Sexual Offenses Act, 2012.

JUDGEMENT:

The bench noted that the appellant/accused was convicted by the trial court of the offence of ‘aggravated sexual assault,’ punishable under Section 10 of the POCSO Act. To determine whether the claimed act of the appellant/accused was under the definition of ‘aggravated sexual assault,’ the Court looked to the definition of sexual assault, which stated that the crime required the following ingredients:

(i) Act must have been committed with sexual intention.

(ii) Act involves touching the vagina, penis, anus, or breast of the child.

or

makes the child touch the vagina, penis, anus or breast of such person or any other person.

 or

does any other act with sexual intent which involves physical contact without penetration.

Furthermore, the Court stated that the conduct of ‘holding the prosecutrix’s hands’ or ‘opening the zip of the trouser’ as purportedly observed did not satisfy the concept of sexual assault.’

Given the nature of the claimed conduct and the punishment imposed, the Court concluded that the aforementioned acts were insufficient to establish criminal culpability on the appellant/accused of the alleged charge of aggravated sexual assault. The bench stated that the prosecution could prove that the appellant/accused entered the prosecutrix’s home with the aim to offend her modesty or sexual harassment, as described in Section 11 of the POCSO Act.

As a result, the appellant/conviction accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC, read with Section 12 of the POCSO Act, was maintained. The criminal appeal was partially permitted, and the appellant/conviction accused of the offence punishable under Sections 8 and 10 of the POCSO Act was quashed and set aside.

JUDGEMENT REVIEWED BY REETI SHETTY

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