Libnus v. State of Maharashtra (2021) - Holding Hand and Unzipping Pant not Sexual Assault under POCSO

• DATE: 6^th February 2021
• JUDGES: Bharati Kale
• REFERENCE: 2021 SCC OnLine Bom 66
• PARTIES: Libnus Kujur (APPLICANT) & State of Maharashtra (RESPONDENT)

SUBJECT

The following judgement deals with section 7, 10 and 12 of POCSO Act which criminalises sexual assault against children and section 354A of IPC which criminalises sexual harassment. The question before Court in the present case was whether physical contact necessary to constitute sexual assault under POCSO and IPC or not.

AN OVERVIEW

1. The special POCSO Court of Mumbai in the present case is hearing the bail of the accused concerning sexual assault against a child aged 5years.
2. The victim is a 5 year old girl. Her mother filed a complaint stating that the accused entered her house when her daughters were alone in the house and was holding the hand of the victim. It was further stated that when she saw him, he ran away.
3. The victim child testified that the accused unzipped his pants and removed his penis and asked the girl to sleep with him.
4. A case was registered under section 8, 10 and 12 of the POCSO Act and section 354Aand 448 of IPC for sexual assault, sexual harassment and house-trespass. The Special POCSO Court of Nagpur held the accused guilty and awarded punishment accordingly.
5. An appeal was made in Bombay High Court challenging the judgement of the special Court. The court was of the opinion that under section 7 of the POCSO Act, the expression sexual assault involves touching of vagina, penis, anus or breasts of the child or making the child touch vagina, penis, anus or breast of other person. The court further stated that holding the hands and opening the zip of the pants does not fit under the meaning of sexual assault.
6. The High Court of Bombay was of the opinion that case comes under the ambit of sect 354A (1) of IPC which deals with sexual harassment and convicted the appellant under the same section and partly allowed the appeal.
7. The Attorney General of India after the acquittal of the accused brought the matter to Supreme Court's notice which stayed the judgement of the Bombay High Court.

IMPORTANT PROVISIONS

Protection of Children from Sexual Offences Act, 2012:

Section 7- 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 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.

Section 8- . Punishment for sexual assault

Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Section 10- Punishment for aggravated sexual assault

Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Section 12- Punishment for sexual harassment

Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Indian Penal Code, 1860

Section 354A(1)- Sexual harassment and punishment for sexual harassment

A man committing any of the following acts -

(i) physical contact and advances involving unwelcome and explicit sexual overtures, or;
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

Section 448- Punishment for house-trespass

Whoever commits house-tres­pass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

ISSUES

The key issue before the court was whether holding hand of a child and taking penis out in front of her would fall within the definition sexual assault under section 7 of the POCSO Act?

ANALYSIS OF THE JUDGEMENT

• The object behind the POCSO Act was to safeguard children from sexual offences which received a massive jolt when the Bombay High Court acquitted the person accused of sexual assault against a 5 year old girl. However, the judgement was stayed by the Supreme Court. In this judgement, the POCSO Court of Mumbai was not consistent with that of the High Court and dealt with the provisions of POCSO Act to answer whether the accused can be granted bail or not.
• The main contention of the accused is that the victim used to visit his house and it cannot be said that the touch was a ‘bad touch'. To answer this question, the court stated that the victim being a small girl, it cannot be presumed that she is not aware of good touch or bad touch.
• The victim has expressly stated that the accused touched her and she felt the touch was a bad touch.
• The court further opined that the accusations were of a serious nature and the applicant is alleged to have committed aggravated sexual assault. Thus, the bail plea is rejected.

CONCLUSION

• The approach adopted by the special court after the controversial decisions of the High Court of Bombay is very much appreciated as it restores the very purpose of the enactment of the POCSO Act.
• The judgement of the High Court was an absurd interpretation of the section 7 of the POCSO Act which clearly mentions any act with sexual intent. The act of holding hand, unzipping pant and showing penis to a child falls under the ambit of the phrase ‘any other act with sexual intent involving physical contact without penetration', thus qualifies as sexual assault.
• The present judgment however is commendable as it considers that a child has the capacity to understand the difference between good touch and bad touch and does not leave them vulnerable and subjected to the opinion of the adults concerning the intention of the accused.