Groping child without skin-to-skin contact & sexual intent not assault under POCSO — Bombay HC

According to Justice Ganediwala, sexual assault on a minor would involve an act committed with sexual intent that involves physical contact without penetration.

File photo of Bombay High Court | Commons

New Delhi: The act of groping a child’s breast, without any skin-to-skin contact and sexual intent, is not sexual assault under the Protection of Children from Sexual Offences (POCSO) Act  — the special law meant to deal with crimes against children — the Nagpur Bench of the Bombay High Court has held.

A single-judge bench of Justice Pushpa V. Ganediwala said that touching a minor girl’s breast without removing the top would not fall within the definition of sexual assault, but would be termed as outraging the modesty of a woman under the Indian Penal Code (IPC).

The ruling came on an appeal filed by a woman, convicted under POCSO and other IPC offences, for allegedly sexually assaulting a 12-year-old girl and attempting to remove her knickers.

“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 the top and pressed any breast, would not fall in the definition of sexual assault. It would certainly fall within the definition of section 354 of Indian Penal Code (outraging modesty),” the judge said.

Justice Ganediwala added that according to Section 7 of the POCSO Act, sexual assault on a minor would involve an act committed with sexual intent that involves physical contact without penetration.

According to the section, 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.

A person convicted for the offence can be sentenced, under Section 8 of the POCSO Act, to a maximum prison term of five years and a minimum of three years.

Man accused of groping minor girl convicted for just outraging modesty

The high court’s interpretation of the law came as it read down a trial court order against the appellant who was declared guilty for sexual assault under POCSO as well as various IPC sections, including outraging modesty of a woman, kidnapping and wrongful confinement.

While the man was sentenced to three years of jail for the offences of sexual assault and outraging the modesty, he was asked to serve two years for kidnapping and six months for wrongful confinement. All jail sentences were directed to run concurrently.

In its judgment, the HC acquitted the man under POCSO and convicted him only under the minor offence of outraging modesty, while sentencing him to just one year of rigorous imprisonment.

Justice Ganediwala also rejected the prosecution lawyer’s contention that pressing of breast comes within the definition of Section 7 of POCSO.

“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, that is skin to skin with sexual intent without penetration,” the judge said.