Bombay High Court: Pushpa V. Ganediwala, J., altered the conviction of the appellant who was accused of sexually assaulting a minor child by partly quashing his conviction for the offence of sexual assault and aggravated sexual assault punishable under Sections 8 and 10 of POCSO Act, respectively.
The instant appeal challenged the judgment wherein the appellant/accused was convicted for the offence under Sections 354-A(1)(i) and 448 of the Penal Code, 1860 and Sections 8, 10 and 12 read with 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012.
Factual Matrix
Informant i.e. the mother of the prosecutrix had gone to her duty and on returning back home she saw the presence of appellant/accused in her house molesting her minor daughter who was aged about 5 years.
Further, the informant stated that she saw that the accused was holding the hands of her elder daughter. Informant’s daughter had informed that the accused removed his penis from the pant and asked her to come to the bed for sleeping.
Analysis and Decision
Bench noted that the appellant/accused was convicted by the trial court for the commission of offence of ‘aggravated sexual assault’, punishable under Section 10 of POCSO Act. However, to decide whether the alleged act of appellant/accused would fit into the definition of ‘aggravated sexual assault’, Court looked into the definition of ‘sexual assault’, according to which the offence involved the following ingredients:
(i) Act must have been committed with sexual intention.
(ii) Act involves touching 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 with sexual intent which involves physical contact without penetration.
Further, the Court added that the acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as had been allegedly witnessed by PW-1, which in the opinion of this Court did not fit in the definition of ‘sexual assault’.
Considering the nature of the offence and the sentence prescribed, Court opined that the aforesaid acts were not sufficient for fixing the criminal liability on the appellant/accused of the alleged offence of ‘aggravated sexual assault’.
“At the most, the minor offence punishable under Section 354-A(1)(i) of the IPC r/w Section 12 of the POCSO Act is proved against the appellant.”
Another point noted by the Bench was that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an 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 with sexual intent……’ The words ‘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.
Bench expressed that the prosecution could establish that the appellant/accused entered into the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined under Section 11 of the POCSO Act.
Hence, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was maintained. The criminal appeal was partly allowed and the conviction of the appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO Act, was quashed and set aside.[Libnus v. State of Maharashtra, 2021 SCC OnLine Bom 66, decided on 15-01-2021]