Not ‘Sexual Assault’ under POCSO but ‘Sexual Harassment’ under IPC if a man opens his pants zip before a Minor Girl and hold her hands

The Bombay High Court held that an act of obstructing minor girl’s hands movement and unzipping of pants would not amount to ‘sexual assault’ as defined under Protection of Children from Sexual Offences Act, 2012.

The court stated that the same act would attract Section 354A(1)(i) of the Indian Penal Code wherein the offence of ‘sexual harassment’ is defined.

This conclusion was drawn upon by a single-judge bench while hearing a criminal appeal filed against the conviction and sentence awarded to a 50 year old man for the offence of molesting a 5 year old girl.

The case was registered and initiated upon a complaint lodged by the mother of the girl, who saw the accused with an unzipped pant, and holding her daughter’s hands.

She further testified that her daughter had informed her that the accused had removed his penis from his pant, and asked her to accompany him till the bed for sleeping. 

The Sessions Court held the act of accused to be “aggravated sexual assault” as it was committed on a girl below the age of 12 years. It held him punishable under Section 10 of the POCSO Act. 

However, the Bombay High Court interpreted the definition of ‘sexual assault’ prescribed by POCSO Act and stated that ‘physical contact with sexual intent without penetration’ is an essential ingredient for holding the liability of accused.

Since the same was missing in the case at hand, the court said that the allegations are not sufficient to suffice the requirement of Section 10 of POCSO.

Moreover, the Bombay High Court applied the rule of ejusdem generis to interpret the words ‘any other act’ contained in Section 10 and stated that the same must be interpreted in accordance to the first half of the definition.

The Court set aside the conviction under Section 8, 10 and 12 of the POCSO Act and found him guilty under Section 354A(1)(i) of IPC as the definition of sexual harassment which deals with “physical contact and advances involving unwelcome and explicit sexual overtures”, is attracted by the case at hand.

As a result of this, appellant/accused’s punishment reduced from 5 years to 3 years imprisonment, out of which 5 months imprisonment he already underwent.