'Immaterial Whether Breasts Of 13 Yr Old Girl Were Developed Or Not': Calcutta HC Upholds Conviction For Sexual Assault U/S 7 Of POCSO Act

The Calcutta High Court has recently held 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. 

During the proceedings, it was alleged on behalf of the appellant that since the the concerned Medical Officer had deposed that the breasts of the victim girl was not developed, the question of touching breasts by the accused did not arise at all.

 Dismissing such a contention, Justice Bibek Chaudhuri observed, 

"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"

While interpreting Section 7 of the POCSO Act, the Court underscored that touching the vagina, penis, anus or breasts of the child or making the child touched 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 Court elucidated further. 

The Court further highlighted that the sexual intent of a person can be gathered from the specific contact of the accused and the surrounding circumstances and that there cannot be any direct evidence of sexual intent. 

Assessing the conduct of the accused, the Court averred, 

"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."

Reliance was also placed on the Calcutta High Court judgment in Bijoy alias Guddu Das v. State of West Bengal wherein it had been held that if the act of the accused was proved to have been prompted by lascivious instinct within the culpable bounds of the penal provision contained in Section 7 of the POCSO Act, the accused is held to be guilty for committing offence of sexual assault.

The Court also referred to the Supreme Court decision in Attorney General for India versus Satish and another wherein it had been held that the main ingredient of the offence of sexual assault under Section 7 of the Act was "sexual intent" and and not "skin to skin" contact.

Accordingly, the Court held that considering the 'lascivious act of the appellant' as demonstrated by the victim girl, it is fully satisfied that the victim girl was subjected to sexual assault by the appellant.

Thus, the Court upheld the conviction of the accused under Section 8 of the POCSO Act and under Section 448 of the IPC. 

Background 

The appellant was convicted for committing offence punishable under Sections 448/354 of the IPC and also under Section 8 of the POCSO Act by the concerned Trial Court. A police case was registered on May 31, 2017 on the basis of a written complaint by the mother of the minor victim girl who was aged about 13 years on the date of filing of the complaint. 

It was alleged that the accused Rohit Pal came to their house in her absence and found the minor girl playing in the house. Suddenly, the accused caught hold of her hand and dragged her inside the house, pushed her and touched her breast and other parts of her body. He also kissed her on her face and thereby outraged her modesty. When the minor daughter of the de facto complainant cried out and struggled to set herself free from the clutches of the accused, Rohit fled away.

Advocates Kallol Mondal, Krishan Ray, Souvik Das and Anamitra Banerjee appeared for the appellant. The State was represented by advocates Saswata Gopal Mukherjee, Ranabir Roy Chowdhury, Faria Hossain and Sandip Chakraborty. Advocate Ayan Bhattacharjee was appointed as the amicus curiae. 

Case Title: Rohit Pal v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 121

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