ASSAULT: Under the POCSO Act any inappropriate touch of a minor with or without clothes even with her consent is considered a case of sexual assault under the POCSO Act attracting three years of imprisonment.

By Rajan Narayan

The skin-to-skin contact judge, whose verdict has been stayed by the Supreme Court, has delivered two more successive judgement which appear questionable. These are acquitting a 50-year-old, convicted under the of The Protection of Children from Sexual Offences (POCSO) Act 2012 , for allegedly holding the hand of a five-year-old and unzipping his trouser in her presence. The third controversial verdict is the acquittal of a 25-year-old convicted for rape on the grounds that “it was highly impossible for a single man to gag, remove her and his clothes and perform a forcible sexual act….”

DESPITE the stay on the judgement of newly promoted justice Pushapa Ganediwala in the skin-to-skin contact case, she continues to favour male molesters of children. In the first of the two new cases in which Justice Pushpa Ganediwala has passed a verdict, allegedly favouring the culprit, she reversed the conviction of a 50-year-old man who was convicted under the POSCO Act. The controversial judge while reversing the conviction, ruled “that holding hands of the minor and unzipping his pants in front of her (victim) cannot be defined as ‘a sexual assault’.”

FLASHING BEFORE CHILD

The act of holding the hands of a victim and opening the zip of his pants, in the opinion of the judge, does not fit into the definition of sexual assault. Justice Ganediwala, who was appointed district judge in 2007, was elevated to the HC as an additional judge in 2019. She was made a permanent judge of the HC by the SC Collegium as recently as January 21.
TO quote the newly appointed judge “considering the nature of the offense and sentence prescribed it was insufficient for fixing criminal liability on the accused for the alleged offense of aggravated sexual assault.” At most, it would attract the minor offense of outraging the modesty of a women. She dismissed the conviction of Libnus Kujur of Gadchiroli by the District Court.
The same judge, who is part of the Nagpur Bench of the Bombay HC, also acquitted a man of rape charges while ruling that a single man alone could not commit a sexual act without any resistance from the victim. The alleged culprit in this case is Suraj Kasarkar (25) of Yavatmal, who was sentenced to ten years rigorous imprisonment by the Yavatmal sessions court, after being convicted for the rape of a 15-year-old minor. He was also convicted for criminal trespass for having entered her house without her consent. The complaint against him was lodged by the victim. Kasarkar challenged the trial court’s verdict in the HC, contending that it was not rape but a consensual act and the victim lodged the complaint after her mother found him running away from the house. At the time the rape was alleged to have taken place, the girl was a minor being only 15 years of age.
The judge, whose verdict on the skin-to-skin contact case, in her verdict in the rape case claimed “it seems highly impossible for the single man to gag the survivor’s mouth, remove her and his clothes and perform the forcible sexual act without any resistance. The judge also claimed the medical evidence did not support the victim’s case as there were no injuries which would have been there if there had been resistance.
Even presuming that it was a consensual act it would still be rape considering at the time the incident happened the girl was a minor. Any sexual act including rape against a girl who is less than 18 years old is consider rape both under the Criminal Procedure Code and under the POCSO Act.

RAPE OF MINOR GIRL

IN close succession, since her appointment as a permanent judge of the Mumbai High Court, Justice Pushapa Ganediwala, has delivered three controversial verdicts. In the first case she acquitted the accused, claiming it would not be a case of molestation even if the culprit touched the breast of the victim through her clothes if there was no skin-to-skin contact. In the second case she ruled that holding the hands (imprisoning of a five year old) and flashing his organs in front of her, could not be defined as sexual assault. In the third case she acquitted a culprit who had been guilty of raping a 15-year-old girl and sentenced to ten years of rigorous imprisonment on the grounds that “it seemed highly impossible for a single man to gag a survivor’s mouth, remove her and his clothes and perform the forcible sexual act.”

PROTECTING CHILDREN

The SC has been very proactive in protecting the girl child. Besides the sections of the criminal procedure code the Special Protection of Children from the Offences of Sexual Assault (POSCO) has also been passed. Which has stringent preventive provisions and severe punishments for any sexual advances towards children, even with their consent.
In the wake of the Vishaka judgement of the SC, a lot of steps have been taken to safe guard women in the work place. But the series of judgements passed by Justice Pushpa Ganediwala, of the Nagpur bench of the Bombay HC, go against the letter and the spirit of the measures taken by the government and the SC to prevent sexual assault of women and children.
In over-turning the judgements of the District Court the Gujarat women judge has acquitted the accused either on technical grounds or her own views on whether a single man can gag victim’s mouth remove her clothes and commit a sexual act. The majority of the cases of rape are by single men, who are strong enough to overpower a women and molest her against her consent.
In fact, in recent judgements, it has even been ruled that the woman’s consent is essential even if the man concerned is married to her for acts of sexual intercourse.