The Bombay High Court in a recent judgment stated that the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty 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.
Factual background
The informant (mother of the prosecutrix) lodged a report at the police station stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point in time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant / accused of the offence punishable under Sections 354, 363, and 342 of the IPC and under Section 8 of the POCSO Act.
Special Court, Nagpur
The Special Court framed the charge against the appellant / accused under Sections 361, 354, 342, and 309 of the IPC and under Section 8 of the POCSO Act. The said charge was read over and explained to the appellant / accused, which he denied.
After hearing both sides, the Special Court found the appellant / accused guilty of the crime registered against him and passed the judgment of conviction and sentenced him. The Special Court, however, acquitted the appellant / accused of the offence punishable under Section 309 of the IPC.
The issue before the High Court
Whether the ‘pressing of the 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?
Bombay High Court (Nagpur Bench)
Analysis
The High Court in its Analysis stated that the
“Offence of ‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. The definition starts with the words – “
- “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…...’
- The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that
Further, the Court stated that the, “Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
Considering the stringent nature of punishment provided for the offence, 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’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.
So, the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty.
Court Judgment
The Court in its judgment stated that the “Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month.”
The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs.500/-, in default to suffer R.I. for one month, is maintained. The accused is on bail. His bail bond stands forfeited. Issue Nonbailable warrant against the appellant – accused. All the substantive jail sentences shall run concurrently and the appellant-accused is entitled for set off under Section 428 of the Code of Criminal Procedure.
Read Judgment @Latestlaws.com
Share this Document :
Picture Source :
