Bombay High Court – Holding hand of Victim & Opening zip of Pant is not Sexual Assault

In an unprecedented single bench judgment of Bombay High Court, Justice Pushpa Ganediwala held that holding hands of minor and opening the zip of own pants by accused would not amount to sexual assault, rather it would amount to sexual harassment.

In this case of Libnus vs. State of Maharashtra decided by Bombay High Court on 28th January, 2021, the mother of the victim had seen that the zip of accused’s pant was open while he was holding the hands of her daughter. The victim who was below the age of 12 years, had informed her that the accused had removed his penis from the pant and asked her to come to the bed to sleep. The Sessions Court had termed the act to be “aggravated sexual assault” and convicted the Appellant for 5 years rigorous imprisonment under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The decision of the Session Court is very similar to the order delivered by the Delhi High Court in the case of Rajendra vs. State (2020 SCC Online Del 724) in which the Court had held that pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and since the assault was committed on a child below the age of 12, it would amount to aggravated sexual assault which is punishable under Section 10 of POCSO Act.

However, the Bombay High Court stated that in the current case it would not amount to sexual assault as ‘holding the hands of the victim’, or ‘opening zip of the pant’ does not fit in the definition of sexual assault. Sexual Assault is defined as, “Whoever with sexual intent touches 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……”. According to the single bench, “any other act” would require actual touching of private parts of the girl and since the act of the accused does not satisfy the definition, the person cannot be accused of sexual assault. Further, the Court opined that the act of entering the victim’s house with the intention to outraging the modesty of the child has attracted Section 11 of POCSO Act which defines sexual harassment. Here the physical contact would not require touching of private parts of the victim. Therefore, the Court held that the accused would be convicted under the offence of sexual harassment which is punishable under Section 354A(1)(i) of the Indian Penal Code r/w Section 12 of the POCSO Act.

The point of contention here is that Section 354A of IPC carries a lesser sentence when compared to Section 10 of POCSO Act. The High Court while finding the accused guilty held that the five months imprisonment undergone by him was enough for the act committed by him. If the accused were held guilty under Section 10 of POCSO Act then he would be imprisoned of either description for a term which would not be less than five years but which could be extended to seven years. Since the difference of punishment under both the cases is very huge and the ruling in the case will set a precedent for future cases, the question whether such an act amounts to sexual assault becomes a matter of grave concern.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work & Vaishali Jain, Paralegal – Child Safety at Work

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