The Nagpur bench of Bombay High Court acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act.
- It set aside the ruling of a lower court under Section 8 of POCSO applicable to “sexual assault” on children, against convict.
- Section 8 of POCSO provides for stringent punishment of five years’ of rigorous imprisonment (RI), the High Court observed that “stricter proof and serious allegations are required”.
- As such there is no direct physical contact i.e. skin to skin with sexual intent without penetration”.
- The bench observed that “the act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty.”
- This 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 RI. The maximum sentence is five years and the minimum one year for an offence under this section.
- POCSO’s definition of sexual assault: Act must have been committed with sexual intent, act must involve touching the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person or doing any other act with sexual intent which involve contact without penetration.
- As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.
- 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 (of the same kind). The act should be of the same nature or close to that.”