January 31, 2021

AIDWA Deplores Acquittal of POCSO Accused

THE All India Democratic Women’s Association (AIDWA), in a statement issued on January 27, has denounced the judgement of the Nagpur Bench of the Bombay High Court which has acquitted an accused of the charge of sexual assault of a 12-year old girl under Section 7 of Protection of Children from Sexual Offences (POCSO) by saying that since there was no skin-to-skin contact with sexual intent, no case was made out. The high court overruled the sentence of three years given by the trial court.

The young child was lured by the 39-year old accused to his house on the pretext that he would give her a guava. She was then taken by the accused to a room on the first floor of his house and the accused started fondling her breasts and tried to remove her salwar obviously with the intention of raping her. When the girl started shouting, the accused covered her mouth with his hand and then left the room after locking the door from the outside. A neighbour heard the girl's shouts and informed the girl's mother who found her weeping in this locked room. Though an offence of attempt to rape was made out, the accused was not charged with this.

The accused was only charged with kidnapping, wrongful confinement and molestation under S354 IPC, and non-penetrative sexual assault under Section 8 of POCSO only. Section 7 of POCSO describes non-penetrative sexual assault and says that whoever, with sexual intent, touches the vagina, penis, anus or breast of a child or makes the child perform the same acts with the person involved or does any other act which involves physical contact with sexual intent without penetration commits sexual assault. S8 of POCSO prescribes a punishment of three to five years and with fine. It is obvious even to a lay person that the crime committed by the accused falls squarely within the definition of sexual assault as defined in Section 7. No where does the section specify that the touching with sexual intent has to be a skin-to-skin contact. In any case the definition is wide enough to cover all other acts of touching with sexual intent.

The judge's reasoning is thus deeply flawed. The judge also fails to understand the serious nature of the act from the perspective of the victim of sexual assault. She seems to have seen it just as a minor crime for which a punishment of three years was very harsh and disproportionate. However the vulnerable child who was subjected to this act of abuse and violence was clearly traumatised by this experience.

AIDWA and others have struggled and campaigned for several years for a law which recognises the effect and seriousness of sexual assault for those who are subjected to it. However, though the law has been amended in many important aspects, the patriarchal mindset of those applying the law also needs to change. Sexual assault is a grave act of violence and violates the bodily integrity of women. AIDWA demands that the government of Maharashtra file an appeal against this atrocious judgement.