It was however held by the court that the same will amount to ‘sexual harassment’ under Section 354 A(1)(i) of the Indian Penal Code.
Justice Pushpa Ganediwala was the judge who passed the order in a criminal appeal which was filed against the conviction and sentence awarded to a 50-year-old man for molesting a 5-year-old girl in the case of Libnus v. the State of Maharashtra.
The offence was held against a child who is aged below 12 years; therefore, it was held to be an aggravated sexual assault and proceed with the punishment for the accused under Section 10 of the POCSO Act and sentenced him to 5 years of rigorous imprisonment and a fine of Rs. 25,000 with a default simple imprisonment for 6 months.
What is Sexual Assault under POCSO?
The High Court, while considering the appeal noted the definition ‘sexual assault’ under section 7 of the POCSO Act as,
“Sexual assault – 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 the child or makes the child touch the vagina, anus, penis or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
The court also noted that for an act to be considered as ‘sexual assault’, physical contact with sexual intent is necessary irrespective of penetration for the offence. Since no touching of private parts of the body happened in the case, the High Court considered if the act will come under the ambit of the third part of the definition, “any other act with sexual intent which involves physical contact without penetration.”
According to the Court, the words ‘any other act’ should be inferred and interpreted ejusdem generis with the beginning portion of the definition (Ejusdem Generis is a principle of statutory interpretation which says that the meaning of general words that follow a specific word is limited by the meaning of the special words.)
On this basis, the court said,
“The acts of ‘holding of hands of the prosecutrix’ or ‘opening of 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’.”
The Court held that the offence of Sexual Harassment under Section 354A(1)(i), which deals with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, is attracted in the case.
Therefore, the conviction under sections 8, 10, and 12 of the POSCO Act was set aside and the accused was found guilty under section 354a(1)(i) IPC, which carries a maximum imprisonment of 3 years.
“Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”, the court said.
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