MUMBAI: When there is “no direct physical contact—skin to skin with sexual intent, without penetration”, it would not amount to ‘sexual assault’ under the Protection of Children from Sexual Offences (Pocso) Act, Bombay high court held while acquitting a 39-year-old man who had been sentenced to three years’ imprisonment under section 8 of the Act by a trial court for pressing the breasts of a minor.
Justice Pushpa Ganediwala of Nagpur bench of the HC said “stricter proof and serious allegations are required’’ given the stringent punishment of three to five years’ imprisonment that ‘sexual assault’ under the Pocso Act entails.
“Evidently, it is not the prosecution’s case that the appellant removed her top and pressed her breast,” said Justice Ganediwala adding, “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 her breast, would not fall in the definition of ‘sexual assault’”. But it would attract punishment for molestation under section 354 of the IPC, she said, and sentenced him to one year in jail for the “minor offence”.
The HC said the issue before it was whether ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the Pocso Act. While public prosecutor M J Khan argued the offence fell within the definition of ‘sexual assault’, the HC held it was “not possible to accept’’ the prosecutor’s submission. The court said the “basic principle of criminal jurisprudence is that punishment shall be proportional to seriousness of crime”.
The trial court in Nagpur had last February sentenced the man under section 8 of the Pocso Act and under section 354 IPC (assault or criminal force with intent to outrage a woman’s modesty). The man had appealed his conviction.
The girl had testified that she was lured on a false pretext by the accused to his house. She said he had tried to remove her salwar and had pressed her breast. She tried to shout, but he covered her mouth and left the room after bolting the door from outside. Her mother went to his house while looking for her. She had seen the accused leave, and on reaching the first floor found the door bolted from outside and her daughter crying inside. She then went to the police station along with her daughter to lodge an FIR, noted the HC.
The man was on bail. The HC issued a non-bailable warrant against him and said all his other sentences shall run concurrently and he would be entitled for a set-off of term undergone in custody.
(The victim's identity has not been revealed to protect her privacy as per Supreme Court directives on cases related to sexual assault)