Holding minor's hand, opening pants zip not sexual assault under POCSO: Bombay High Court

Days after ruling on 'skin-to-skin contact', the Nagpur bench of the Bombay High Court has said 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falls under Section 354A (1) (i) of the IPC, therefore, the sentence under Section 8, 10 and 12 of the POCSO Act was repealed.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 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.