The Nagpur bench of the Bombay High Court has ruled that holding the hands of a minor girl and opening the zip of pants does not fall under the purview of ‘sexual assault’ or ‘aggravated sexual assault’ of the Protection of Children from Sexual Offences (POCSO) Act. The observation was 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.
When the mother returned from work, she found the accused holding the hand of her daughter with the zip of his pants open.
The mother, while recording her evidence in the lower court, had said that her daughter had informed her that the accused person had removed his private part from the pant and asked the victim to come to bed for sleeping.
“The acts of ‘holding the hands of the prosecutrix (victim)’, or ‘opened zip of the pant’ as has been allegedly witnessed by the prosecution witness (mother of the girl), in the opinion of this court, does not fit in the definition of ‘sexual assault’,” Justice Ganediwala said.
However, proving that there is still hope, the Supreme Court has stayed the order passed by the Bombay High Court and stated that their ruling is “unprecedented and dangerous”. Attorney General KK Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay High Court.
If not for the Supreme Court, the Bombay High Court’s insensitive Judgement would have broken the hearts of several victims, the will to believe in Law and in Justice. As a priority and as a woman as the Bench, the Judge should have firstly considered the trauma a young child has gone through above all. Women across India have been fighting for their basic safety at home and outside and protesting for their basic Rights, but here is a judgement that defies it all making it look like as if all these struggles are of no use. Why is there a POCSO existing if its branches are being modified to the will of an accused? So many questions remain unanswered.
Meanwhile, in its statement, the Supreme Court stated, “”Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks.”
While the accused spends a little more time in prison, here’s a look at an impactful message actress Sherin Sringar posted on her social media. “Still reeling from this judgement!! Wtf, if I were to slap someone with a glove on, it wouldn’t be considered physical violence I suppose. (POCSO) stands for Protection of Children from Sexual Offences, are the kids really protected if the accused are acquitted on a technicality under the said act? I understand that the man was sentenced under section 354, still, the definition for sexual assault needs to change!” wrote Sherin on Instagram.
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