Key Points:
- The POSCO act says, “There has to be ‘physical contact with sexual intent without penetration’” and only then, will it be considered as a Sexual Assault under the POSCO Act. But the Indian Penal Code has a section under Sexual Assault for this act.
- The observation made by a single bench of Justice Pushpa Ganediwala on January 15 while passing an order on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.
Yes, you read it right! It is a SEXUAL ASSAULT but, just not under the Protection of Children from Sexual Offences (POCSO) Act. Just as every individual has a different perspective towards one thing, in the same way, the POSCO Act has a different definition of what Sexual Assault is.
The POSCO act says, “There has to be ‘physical contact with sexual intent without penetration’” and only then, will it be considered as a Sexual Assault under the POSCO Act. But the Indian Penal Code has a section under Sexual Assault for this act.
Under IPC 354 (A) that says, A man committing physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours; or making sexually coloured remarks, shall be guilty of the offence of sexual harassment.”
The mention of all this because the observation made by a single bench of Justice Pushpa Ganediwala on January 15 while passing an order on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.
The 5-year old girl told her mother that the 50 year old (Kujur) had removed his private part from the pant and asked the victim to come to bed for sleeping.
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. When the mother returned from work, she found the accused holding the hand of her daughter with the zip of his pants open.
The Verdict
“The appellant/accused is prosecuted for the charge of ‘aggravated sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact without penetration’ is essential ingredient for the offence. The definition starts with the words – “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 ‘encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that. The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit in the definition of ‘sexual assault’.
Justice Ganediwala has passed another judgement this month releasing 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 criticism.
