A single-judge Nagpur bench of Justice Pushpa Ganediwala of Bombay HC held that an act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of sexual assault under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
The court said that the offense would fall under the Section 354 of the Indian Penal Code (IPC), which criminalises outraging the modesty of a woman. The order reads,
“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.”
The Court maintained his conviction under Sections 354 (assault of criminal force) and 342 (wrongful confinement) of the IPC.
The accused was convicted by the trial court for offences punishable under POCSO Act and the IPC as he had allegedly taken the 12-year-old prosecutrix to his house on the pretext of giving her guava. He had pressed her breast and attempted to remove her salwar.
At this point, the mother of the child came to the spot and rescued her daughter.
The accused then approached the High Court challenging the conviction.
Court’s Observations and Order
Court was considering the question whether pressing of the breast without removing the top of the child would fall within the definition of sexual assault defined under Section 7 of the POCSO Act.
The Section 7 of the Act states for 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 concluded that the necessary ingredients for constituting the offence was that the act must have been committed with sexual intent and it must involve touching the vagina, penis, anus or breast of the child or ‘any other act’ which are similar to the acts specifically mentioned in the provision.
“The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure (sic) to that”, the Court opined.
The Court stated for stringent nature of punishment stricter proof and serious allegations are required. She also observed that the punishment for an offence should be proportionate to the seriousness of the crime.
The Court further ruled,
“Section 7 of the POCSO Act, defines sexual assault and the minimum sentence provided is three years and Section 354 of the Indian Penal Code, which is related to outraging the modesty of a woman, prescribes minimum sentence of one year. In the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fit into the definition of the offence as defined in Section 354 of the Indian Penal Code”.
Therefore, the court acquitted the convict under POCSO Act for Sexual Assault while recognising the act of the accused as use of criminal force with the intention to outrage a woman’s modesty defined under Section 354 of the Indian Penal Code.
The Court forfeited the bail bond of convict and issued a non-bailable warrant against him.
Read the Order here: