GROPING NOT MOLESTING-NAGPUR HC BENCH

The Bombay High Court has observed that groping a child’s breasts without “skin-to-skin contact” does not amount to sexual assault under the Protection of Children from Sexual Offences Act, Live Law reported on Sunday. It would, however, fall within the ambit of Section 354 of the Indian Penal Code, which criminalises outraging the modesty of a woman, the Nagpur Bench of the court said.
A single bench of Justice Pushpa Ganediwala made the observations while modifying an order by a sessions court that held a 39-year-old man guilty of sexual assault. The accused had allegedly taken a 12-year-old to his house on the pretext of giving her guava, and had pressed her breast and attempted to remove her salwar, according to Bar and Bench. The accused was convicted by the trial court for offences punishable under POCSO Act and the IPC. He approached the High Court challenging the conviction.

During the hearing on January 19, the High Court questioned whether the man’s pressing of child’s breasts without removing the top would fall within the definition of “sexual assault” under Section 7 of the POCSO Act. “Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast,” it said. “As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”
Section 7 of the POCSO Act states, “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.”
Based on the above definition, the court concluded that for a person to be held guilty under this law, the act would have to be committed with a “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 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 bench said. “It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”

Justice Ganediwala also ruled that given the “stringent nature of punishment” provided under the POCSO Act, “stricter proof and serious allegations” were required to hold the accused guilty. She said the punishment for an offence should be proportionate to the seriousness of the crime.
“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,” the court observed. “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.”
The judge, therefore, acquitted the accused under POCSO Act, while upholding his conviction under Section 354 of the Indian Penal Code. Considering that the man was out on bail, the court forfeited his bail bond, and issued a non-bailable warrant against him.

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