Bombay High Court judge quashes another POCSO conviction
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Justice Pushpa Ganediwala’s order says “holding hand of victim” and “opening zip of pant” are usually not sexual assault.
The Nagpur Bench of the Bombay High Court on Thursday held that “The acts of ‘holding the hands of the prosecutrix’ (female victim), or ‘opened zip of the pant’ in the opinion of this Court, does not fit in the definition of ‘sexual assault’ ”, and quashed the conviction of a person beneath the Protection of Children from Sexual Offences Act (POCSO).
Also learn | Nagpur bench of Bombay HC overturns man’s conviction under POCSO
On February 12, 2018, the mom of the minor lodged a report that the day earlier than had she observed Libnus Kujur, a labourer in her home, molesting her five-year-old. She noticed him holding arms of her elder daughter and shouted for the neighbours to return in and the accused ran away.
The minor later informed her mom that he eliminated his penis from the pant and requested her to return to mattress for sleeping. The mom had additionally noticed Kujur’s pant zip to be open. He was charged and convicted beneath sections 354A (1) (i) — bodily contact and advances involving unwelcome and express sexual overtures and 448 — punishment for house-trespass of the Indian Penal Code (IPC) and part 8 — punishment for sexual assault, 9 (m) — whoever commits sexual assault on a baby beneath twelve years; 10 — punishment for aggravated sexual assault, 11 (i) — utters any phrase or makes any sound, or makes any gesture or reveals any object or a part of physique with the intention that such phrase or sound shall be heard, or such gesture or object or a part of physique shall be seen by the kid and 12 — punishment for sexual harassment of POCSO.
Justice Pushpa Ganediwala was listening to a legal attraction filed by Kujur, from Gadchiroli difficult his conviction by the decrease court docket on October 5, 2020 that sentenced him for 5 years.
Also learn | HC order ‘bad in law’, say child rights experts
The High Court stated, “The minimum sentence for this offence (punishment for aggravated sexual assault) is five years imprisonment. Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing the criminal liability on the appellant/accused for the alleged offence of ‘aggravated sexual assault’. At the most the minor offence punishable under section 354-A (1) (i) of the IPC is proved against the appellant.”
The nine-page order, handed on January 15, stated, “The conviction of the appellant/accused for the offence punishable under Sections 8, 10 and 12 of the POCSO Act, is quashed and set aside. The conviction of the appellant/accused for the offence punishable under Sections 448 and 354-A(1) (i) of the IPC is maintained.”
Earlier on January 19, Justice Ganediwala had acquitted a person charged beneath the POCSO Act and once more convicted him beneath ‘minor offence’ of IPC as, “There is no direct physical contact i.e skin-to-skin with sexual intent without penetration”.
The Supreme Court on Wednesday stayed that order.
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