Calcutta High Court has noted that it is immaterial whether the breasts of a 13-year-old girl are developed or not for the commission of the offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as long as it is proved that the accused had touched the specific part of the body of the girl with sexual intent.
The appellant had alleged that the medical officer had deposed that the breasts of the victim were developed and therefore, the question of touching breasts did not arise at all.
“In the instant case, the victim girl stated in clear term before the Learned Magistrate as well as during trial that the accused touched her breasts and kissed her. It is absolutely immaterial whether breasts of a 13 years old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be held and term as breast for the purpose of Section 7 of the POCSO Act even if her breasts are not developed due to certain medical grounds,” the bench noted.
Justice Bibek Chaudhari interpreted Section 7 of the POCSO Act and stated that touching the vagina, penis, anus or breasts of the child or making the child touch the vagina, penis, anus or breasts of the offender or any other person with sexual intent does not only constitute the offence of sexual assault but whoever does any other act with sexual intent which involves physical contact without penetration amounts to sexual assault.
“The definition contained in Section 7 has reported three distinct parts The first part is about touching the private parts of the child. The second part is to make the child touch the private parts of the offender or any other person and the third part involves any other act of physical contact with sexual intent. The use of “word” in Section 7 makes the provision abundantly clear that the different acts contemplated in Section 7 if done with sexual intent, consists the offence sexual assault,” the bench noted.
Justice Bibek Chaudhari went on to add, “In the instant case it is stated by the victim girl that the accused touched different parts of her body and also kissed her. Why should a grown up man who is not related with the victim girl kiss her entering into her house when his guardians were not present in the house. The sexual intent of a person can be gathered from the specific contact of the accused and the surrounding circumstances. There cannot be any direct evidence of sexual intent. In the instant case entering into the house of the de facto complainant in the absence of her and her husband, touching the body of the victim girl and kissing her shows that the accused had sexual intent and, therefore, the act involves physical contact by the accused with the victim and he was rightly convicted under Section 8 of the POCSO Act.”
Considering the ‘lascivious act of the appellant’ as demonstrated by the victim, the court noted that the girl was subjected to sexual assault by the accused.
The court upheld his conviction under Section 8 of the POCSO Act and Section 448 of the Indian Penal Code.