The Bombay High Court (Nagpur Bench) has held that groping a child’s breasts without skin-to-skin or physical contact would amount to molestation under the Indian Penal Code but not the graver offence of ‘sexual assault’ under the Protection of Children from Sexual Offenses (POCSO) Act.
The judgment by Justice Pushpa Ganediwala read, “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’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.” Section 354 related to assault or criminal force to a woman with intent to outrage her modesty.
The punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3-5 years, whereas the punishment under Section 354 is imprisonment of 1-5 years. The court interpreted the term physical contact in the definition of sexual assault under section 7 of the POCSO.
7: Sexual assault – “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.”
The court interpreted the words “physical contact” in the definition of sexual assault to mean “direct physical contact, i.e., skin -to- skin contact with sexual intent without penetration.” Justice Pushpa ruled, “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 High Court also said, “It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.”
According to prosecution’s story, the accused/appellant, took the young girl to his house in 2016 on the pretext of giving her a guava and pressed her breast and attempted to remove her salwar. At that point of time, the mother reached the spot and rescued her daughter and an FIR was registered almost immediately. The prosecution examined five witnesses, the mother, survivor, a neighbour who heard the child scream for her mother, and two police officers.
The Nagpur District court held him guilty under sections 354, 363(kidnapping) and 342(wrongful restraint) of the Indian Penal Code and section 8 of the POCSO Act. In appeal, the High Court has now held the man guilty under sections 342 and 354 of the Penal Code while acquitting him under section 8 of the POCSO Act.
The Single Judge also remarked, “Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this Court, stricter proof and serious allegations are required.” As the appellant was out on bail, the Court forfeited his bail bond and issued a non-bailable warrant against him.
The judgment may be read here: