Pressing breasts without skin to skin contact not 'sexual assault' under POCSO, rules Bombay HC

The Bombay High Court acquitted an appellant under the POCSO Act ruling that groping a minor's breast without "skin to skin contact" does not constitute "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act.

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgement passed on January 19, the detailed copy of which was made available now, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault.

The Nagpur Bench of Bombay High Court passed the order while hearing a petition by Satish, who was convicted by a local court under Sections 354, 363 (kidnapping) and 342 (wrongful restraint) of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

"The appellant/accused is convicted for the offence of 'sexual assault'. As per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is an essential ingredient of the offence," read the court order dated January 19.

As per the prosecution and the minor victim's testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he pressed her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.

However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault, the high court held. It, therefore, convicted the man under Section 354 of IPC (outraging a woman's modesty) and sentenced him to undergo rigorous imprisonment for one year.

Sexual assault under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman's modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.

"The act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of 'sexual assault'. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code," it said.

The POCSO Act defines sexual assault as when someone "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".

The court, in its verdict, held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.

"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration," read the court order.

(With agency inputs)