The Bombay High Court has held that the act of pressing the breast of a child in the absence of any specific detail as to whether the top was removed or whether the accused inserted his hand inside the top and pressed her breast, would not fall under the definition of ‘sexual assault’ as provided under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Acquitting the accused of sexual assault under the POCSO Act, Justice Pushpa V. Ganediwala at Nagpur bench of the High Court said there was no direct physical contact i.e. skin to skin with sexual intent without penetration by the man, who under the pretext of giving the child fruit in his house, pressed her breast and attempted to remove her salwar.
Referring to Section 7 of the POCSO Act, Justice Gandediwala said, to attract the offence of sexual assault under POCSO, the following necessary ingredients are required-
(i) Act must have been committed with sexual intent.
(ii) Act must involve touching the vagina, penis, anus, or breast of the child.
or making the child touch the vagina, penis, anus or breast of such person or any other person.
or doing any other act with sexual intent which involves physical contact without penetration.
“Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine”, the Court said.
It added “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of 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”.
The Court, however, upheld the conviction of the accused under Section 354 (Assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC).
It also maintained the sentence of the accused under Section 342 (Punishment for wrongful confinement) of the Indian Penal Code i.e. six months and fine of Rs.500/.
Since the accused was out on bail, the court directed the forfeiture of his bail bond and ordered the issue of a non-bailable warrant.
The court was hearing an appeal filed by the accused against the order of the Sessions Judge convicting the accused for an offence punishable under Sections 354, 363 and 342 of the Indian Penal Code and Section 8 of the POCSO Act.