Introduction

The Bombay High Court recently in Libnus v. the State of Maharashtra passed a controversial judgement where the court acquitted convicts of offences enumerated under POCSO Act and held that ‘opening the zip of pant’ and ‘holding hands of prosecutrix’ would not fall under the definition of sexual assault under POCSO act. The decision substantially migrates from a settled understanding of sexual assault under POCSO act and started a new debate over the definition of sexual assault under POCSO act. The article is an attempt to analyse the decision and highlight the flaws and settled position of law in this regard.

The facts of the case are such that on the date of the incident, parents of the prosecutrix were out for work, when mother returned she saw a man in her house who was taking her daughter forcibly = and moving his pant upwards. Seeing this she shouted but he didn’t move, she shouted again hearing which the neighbours gathered there, and the accused ran away. Later the girl told her mother that he took out his penis and asked her to sleep with him. 6 witnesses including her mother testified in court against the accused. Lower court based upon the evidence presented convicted the accused under 354A(1)(i) IPC as well as Sec.8, 10, 12 of the POCSO act.

In appeal by the accused, High Court upheld his conviction under section 354A of IPC but acquitted him under section8, section 10, section 12 of POCSO Act. As the court was of the opinion that ‘holding hands of the prosecutrix’ or ‘opened the zip of the pant’  does not fit the definition of sexual assault under POCSO act.

The blog highlights two major criticism of judgement (i) interpretation of the phrase ‘other acts’, (ii)  inconsistency in findings of court.

Interpretation of ‘other acts’

Section 9(m) of the POCSO act defines aggravated sexual assault as sexual assault on a child below 12 years of age. While section 7 defines the term sexual assault as whoever with (a) sexual intent (b) touches vagina, penis, anus or breast of child or (c) make the child touch the vagina, penis anus or breast of such person or any other person, or (d) does any other act with sexual intent which involves physical contact without penetration is said to have committed sexual assault.

The court, in this case, applied the principle of ejusdem generis to interpret the ‘other act’ under section 7 of the POCSO Act and held that ‘holding hands’ is an act of different nature than those mentioned in section 7, hence it is not included under the definition of sexual assault, but it has not given any reason for its finding.

Wrongful Application of Principle of ejusdem generis

The principle of ejusdem generis was defined by US supreme court in Circuit city stores v. Adams as a situation where “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words”, the high court also defined the principle in similar words, but the court did not take into account the exceptions of the principle of ejusdem generis, which led to an absurd understanding of ‘other acts’ under section 7 of POCSO act.

The principle of ejusdem generis cannot be applied arbitrarily, it can be applied only as an aid in ascertaining or giving effect to legislative intent. In the case of State v. Eckhardt Missouri Supreme Court held that the principle of ejusdem generis is merely an aid to construction and it should not be applied where it defeats the legislative intent.

The objective statement of the POCSO act states that the act protects the child from Sexual Assault, Sexual harassment and pornography. Hence, the word ‘any other physical act’ shall include all those acts which are not specifically stated but involves physical contact to molest the child. Delhi high court in Ravi v. state affirmed that same understanding and held that ‘holding hand of prosecutrix’ with sexual intent amounts to physical contact and covered under the phrase ‘other acts’ under section 7 of the POCSO act.

Furthermore, it is an established principle that the principle of ejusdem generis should not be applied when the specific words exhaust the class they enumerate. If the specific words exhaust the class then the legislative intent was to use the general word beyond the class denoted by specific words. In the present case, section 7 mentions acts which involve touching vagina, penis, anus or breast of child, or other act involving physical contact, meaning thereby the general word ‘other act’ should include touching any body part other than vagina, penis, anus or breast. Moreover, the Himachal Pradesh high court in Jagar Singh v. State of Himachal held that whenever two interpretations of an act are possible, then the interpretation which favours the child must be taken into account by the court. Hence, in the light of understanding of POCSO act by Delhi High Court and Himachal Pradesh High court as well as the rule of application of the aforementioned principle of ejusdem generis, the other act’ under section 7 of POCSO act includes ‘touching of hand’ or any other body part of child.

Moreover, the court in this case court has not paid adequate attention to the surrounding circumstances of the act, where the accused forcibly entered the house and opened the zip of the pant and asked the girl to sleep with him. While deciding, the court merely focused on the phrase ‘opened the zip’ and ‘holding hands of prosecutrix’ which resulted in gross injustice and ignorance to the legislative intent of the act.

Inconsistency in findings under different laws depicting the same crime

In the present case, the court upheld the conviction under section 354A of IPC but acquitted the accused under section 12 of POCSO act. Court held that it is established that the accused entered into the house with an intention to commit the offence and held the hand of the prosecutrix intending to molest her, hence the conviction of the accused under section 448 and 354-A  of IPC should be upheld. Section 354-A (1)(i)of IPC and section 11 of POCSO deals with the same offence of ‘sexual harassment’. Section 11 includes exhibition of body parts to the child under the definition of sexual harassment while section 354-A (1) (i) of IPC includes any act involving sexual overture. In this case the testimony of the mother, which was held reliable by the court, explicitly states that the accused has removed penis from his pants and asked the prosecutrix to sleep with him, the act of removing penis amounts to exhibition of the body part to the child and sufficient to convict accused under section 12 read with section 11 of POCSO act. Hence, the acquittal of the accused under POCSO, while conviction under IPC for the same offence is absurd as well as inconsistent with the very purpose and judicial interpretations of POCSO Act.

Conclusion

The POCSO Act was enacted to protect children from various type of sexual harassment, it also includes those acts which are not covered by IPC. The phrase ‘other acts’ enumerated under section 7 should be read keeping in mind the legislative intent of the statute. The interpretation that ‘holding the hand of prosecutrix’ especially in the context where the accused entered the house of the prosecutrix and did not leave her despite shouting of her mother, is not covered under the definition of sexual assault is absurd. Moreover, acquitting someone from offence having the same ingredients under one act and convicting him under a different act set a bad precedent of judicial discipline. The court errored in the interpretation of the statute because it ignored the exceptions of the principle of ejusdem generis. The decision depicts the need of sensitization of judges towards offences against children. The Supreme Court has stayed the order.


About the Author, Ankit [2018-23] is pursuing BBA.LL.B  at Chanakya National Law University, Patna

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