Bombay High Court On 'Sexual Assualt' As Defined Under POSCO

OVERVIEW

• The Nagpur bench of Bombay High Court held that groping a child's breasts without 'skin-to-skin contact' amounts to molestation under the Indian Penal Code, but not 'sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act.

• Section 7 of the POCSO Act defines 'sexual assault' as an act of touching the private parts of the child or making the child touch the private parts of the accused or any other person, or any act with a sexual intent involving physical contact without penetration.

ISSUE BEFORE COURT

• The hearing before the Court disclosed that the accused had allegedly taken a minor girl to his house under the pretext of offering her a guava and pressed her breasts and partially stripped her.

• An FIR was lodged by the mother of the minor against the accused. The accused was convicted by trial court under the POCSO Act and IPC, where hewas held guilty under sec. 354 (outraging modesty of a woman), 363 (kidnapping), ad 342 (wrongful restraint) under the IPC and sec. 8 of POCSO Act.

• However, the accused further approached the high court contending the allegation.

• The Court interpreted the words 'physical contact' under sec. 7 of POCSO Act as 'skin-to-skin contact with sexual intent without penetration.'

• The single-judge bench of Justice Pushpa Ganediwala examined sec. 7 of the said act and held that stricter proof and serious allegations would be required in relation to the nature of punishment, since 'the punishment for an offence shall be proportionate to the seriousness of the crime.'

• As per the report, sec. 8 under the POCSO Act penalizes sexual assault with an imprisonment of 3 to 5 years, whereas the minimum punishment for outraging the modesty of a woman under sec. 354 of IPC is only 1 year.

CONCLUSION

• Considering the above circumstances and observations, the High Court has held the accused guilty under sec. 342 and 354 of the IPC, acquitting him of the charges under sec. 8 of POCSO Act.

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