In a bizarre observation, the Nagpur bench of the Bombay High Court held that groping a child’s breasts without ‘skin-to-skin contact’, would not amount to the grave offense of ‘sexual assault’ under the Protection of Children from Sexual Offenses (POCSO) Act.
A single-judge bench of Justice Pushpa Ganediwala had made the above observation while modifying a session’s court order that held a 39-year-old man guilty of sexual assault for groping a 12-year-old girl and removing her salwar.
The Judge, however, asserted that the said offense would amount to molestation under IPC and sentenced the man under Section 354 of the Indian Penal Code (outraging a woman’s modesty) to one-year imprisonment.
“Considering the stringent nature of punishment provided for the offense (under POCSO), in the opinion of this Court, stricter proof and serious allegations are required. 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’,” stated the Judge.
“The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty,” added the court while interpreting the words “physical contact” in the definition of sexual assault to mean “direct physical contact- direct physical contact i.e., skin-to-skin contact with sexual intent without penetration”.
“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,” the order stated.
While Sexual assault under section 8 of the POCSO Act, would attract a minimum punishment of three years, on the other hand outraging a woman’s modesty under section 354 of the IPC, attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.
As per the prosecution case, on 14 December 2016, the accused, took the young girl to his house on the pretext of giving her guava, pressed her breast, and attempted to remove her salwar. However, soon the mother reached the spot and rescued her daughter.
An FIR was registered almost immediately. The prosecution examined five witnesses, the mother, survivor, a neighbor who heard the child scream for her mother, and two police officers.
The sessions court held him guilty under Sections 354, 363 (kidnapping), and 342 (wrongful restraint) of the Indian Penal Code and also under Section 8 of the Protection of Children from Sexual Offences Act, 2012.
However, the Nagpur bench of Bombay High Court interpreted Section 7 of the POCSO Act and stated that the section defines sexual assault as “Whoever, 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.”
“It is the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime,” the court held while acquitting the accused under Section 8 of the POCSO Act.