Pressing Breasts Without Disrobing Not "Sexual Assault" As Per POCSO Act But Offence Under Sec 354 IPC : Bombay High Court

The Nagpur Bench of the Bombay High Court has held that groping a child's breasts without 'skin-to-skin 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.

A single bench of Justice Pushpa Ganediwala made the observation while modifying the order a sessions court that held a 39-year-old man guilty of sexual assault for groping a 12- year- old- girl and removing her salwar. The court has now sentenced the man under Section 354 IPC (outraging a woman's modesty) to one year imprisonment for the minor offence(Satish v State of Maharashtra).

Sexual assault under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman's modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.

"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. 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 held, adding, "The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty", the Court added.

The court interpreted the words "physical contact" in the definition of sexual assault to mean "direct physical contact- direct physical contact i.e. skin -to- skin contact with sexual intent without penetration."

"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 order stated.

Section 7 of the POCSO Act defines sexual assault as :

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.

"It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime", the court held.

According to the case of the prosecution on December 14, 2016, the accused, took the young girl to his house on the pretext of giving her a guava, pressed her breast and attempted to remove her salwar. At that point of time, the mother reached the spot and rescued her daughter. 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 court held him guilty under sections Sections 354, 363(kidnapping) and 342(wrongful restraint) of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act).

The High Court has held the man guilty under sections 342 and 354 of the IPC while acquitting him under section 8 of the POCSO Act.

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