Physical Contact With Sexual Intent Without Penetration Is Sexual Assault U/S 7 POCSO Act: Kerala High Court

The prosecution case was that the accused, who is a teacher, took a child studying in 1^st standard to staff room and asked him to lay on his body. When the victim refused, he beat the child with a cane. Fearing this, whenever the victim was again called to lay on his body, the victim complied.

The accused was booked under Sections 9 (f), (m) (aggravate sexual assault), 10 (punishment for aggravated sexual assault) of POCSO Act and Section 23 (punishment for cruelty to child) of Juvenile Justice Act. The accused sought discharge for offences under Section 9(f), (m) and 10 of the Act. The trial judge dismissed the discharge petition. Against this order, the accused approached the High Court.

The High Court confirmed the view of the trial court and observed that any physical contact made with sexual intent is sexual assault under the Act.

“Thus dividing the act of sexual assault, the legislature dealt with three instances. The third part is, doing any other act with sexual intent which involves physical contact without penetration. The said overt act alone is also sexual assault for the purpose of Sections 9(f),(m) and 10 under the POCSO Act."

The Court further observed that the Special Court can assume such mental state under Section 30 of POCSO Act. The Section when any offence under POCSO requires a culpable mental state, the special Court can presume such mental state but it shall be a defence for the accused to prove that no such mental state existed.

Accordingly, the petition was dismissed.

Counsel for the Petitioners: Advocates Prajit Ratnakaran, Abdul Raoof Pallipath, Rajesh V. Nair, E. Mohammed Shafi

Counsel for the Respondents: Adv. Renjit George (PP)

Case No: Crl.Rev. Pet. 884 of 2024

Case Title: Ajith Prasad Edacherry v State of Kerala

Citation: 2024 LiveLaw (Ker) 736