Introduction 

• This is a landmark judgment where the Court defined what would constitute aggravated sexual assault under Section 6 of POCSO Act. 
• The Judgment was delivered by a single judge Bench consisting of Justice Pushpa v. Ganediwala. 

Facts

• On 2^nd December, 2018, the informant (mother of the victim) filed a report about an incident that occurred on 11th November, 2018. 
• The informant stated that when she returned home from her duty shift (8:00 am to 4:00 pm), she found the accused molesting her 5-year-old daughter. 
• When the informant left for work, her two daughters (aged 3 and 5 years) were alone at home as her husband was out of town. 
• Upon seeing the accused holding her elder daughter's hands, the informant shouted, causing neighbors to gather, and the accused fled from the scene. 
• Based on the informant's report, Crime No. 63/2018 was registered against the accused for offenses under Sections 354-A(1)(i) and 448 of the Indian Penal Code, 1860 (IPC) and Sections 8, 10, and 12 read with Section 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012 (POCSO). 
• After investigation, police filed a charge sheet before the Special POCSO Court in Nagpur. 
• The Special Court framed charges against the accused, which were explained to him in vernacular. The accused pleaded not guilty. 
• The prosecution presented six witnesses and relevant documents during the trial. 
• The accused was examined under Section 313 of the Code of Criminal Procedure, and his defense was of total denial. 
• The trial Court found the prosecution's evidence trustworthy, convicted the accused, and sentenced him accordingly. 
• The accused has appealed against this judgment of conviction.

Issues Involved

• Whether appellant/accused should be convicted of offence of ‘aggravated sexual offence’ under Section 6 of the POCSO Act? 

Observations 

• The Court observed that in order for the act to fall under ‘aggravated sexual assault’ the following ingredients are to be satisfied: 
  • Act must have been committed with sexual intention 
  • 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 
• In the case at hand the age of the prosecutrix is five years and if the offence of sexual assault is committed on the prosecutrix being of the age below 12 years the conviction has to be recorded for the offence of ‘aggravated sexual assault’. 
• The Court held that for the offence of ‘aggravated sexual assault’ , ‘a physical contact without penetration’ is essential. 
• 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. 
• In the present case it is reflected from the testimony of PW1 that her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to bed for sleeping. 
• The Court held that the acts of ‘holding the hands of the prosecutrix’ or ‘opened zip of the pant’ does not fit the definition of ‘sexual assault’. 
• The Court thus, in the facts of the present case quashed and set aside the conviction under Section 8 and 10 of the POCSO Act. However, the conviction under Section 448, 354 A (1) (i) of IPC read with Section 12 of POCSO Act was maintained in the facts of the present case.  

Conclusion 

• The Court in this case held that the acts of ‘holding the hands of the prosecutrix’ or ‘opened zip of the pant’ does not fit the definition of ‘sexual assault’. 
• Thus, the Court explained what acts would fall within the ambit of ‘aggravated sexual assault’.