Touching breasts over clothes not sexual assault under POCSO but offence under Section 354: Bombay High Court

Bombay High Court. File Pic

The Bombay High Court has ruled that groping without ‘skin to skin' contact is not sexual assault as defined under the Protection of Children from Sexual Offences (Pocso) Act. The ruling was pronounced by a single judge bench of Justice Pushpa Ganediwala, stated a report in India Today.

In a recent judgment, the Nagpur bench of Bombay High Court ruled that there must be physical contact "i.e skin-to-skin contact with sexual intent without penetration" and mere groping would not amount to sexual assault under the Pocso Act. The court opined that touching a minor's chest would not amount to sexual assault unless the accused removed the top worn by the child or slid their hand within the child's garment.

The matter before the court was a criminal appeal filed by a man who was convicted of sexually assaulting a 12-year-old girl by pressing her chest and partially stripping her.

The accused was acquitted under section 8 of the Pocso Act which would attract a minimum punishment of three years. The court convicted him of one year of rigorous imprisonment under Sections 354 (outraging a woman's modesty)and 342 (wrongful confinement) of the Indian Penal Code.

The judge noted that sexual assault under Pocso is defined as an offence, wherein the act must have been committed with the sexual intent and involved touching the private parts of the child or making the child touch the private organ of the accused.

The court further noted that sexual assault, as per the provisions of Pocso involves committing any other act with sexual intent which involves physical contact without penetration.

"Admittedly, it is not the case prosecution that the accused removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration," Justice Ganediwala said.

The judge said that "stricter proof and serious allegations are required" considering the stringent nature of punishment provided for the offence of sexual assault under the Act.

"The act of pressing breast of a 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 her top and pressed her breast, would not fall under the definition of sexual assault. It would certainly fall within the definition of Section 354 of the IPC, which penalises outraging the modesty of a woman," said the court.

"The basic principle of criminal jurisprudence is that the punishment for an offence shall be proportionate to the seriousness of the crime," the court said.

The incident pertains to 2016, the accused took the young girl to his house on the pretext of giving her guava, pressed her breast and attempted to remove her salwar. At that point in time, the mother reached the spot and rescued her daughter.