[Reversed] Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

UPDATE: This Judgment of the Bombay High Court has now been reversed by a 3-Judge Bench of the Supreme Court of India after the matter was mentioned by the Attorney General for India and appeals were filed by the State of Maharashtra and the National Commission for Women.

Bombay High Court: Pushpa V. Ganediwala, J., expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

Present appeal was filed against the Order passed by the Extra Joint Additional Sessions Judge, Nagpur by which the appellant was convicted for the offence punishable under Sections 354, 363 and 342 of the Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

In the instant matter, it was noted that the prosecutrix’s age was 12 years. Prosecutrix went to bring guava and did not come back for a long time. Informant i.e. the mother (PW1) of appellant started searching for her, her neighbour told her that the appellant who was staying in the vicinity of their house, took her daughter to his house and showed her the house of the appellant.

PW1 went called out the prosecutrix’s name. Later, she saw the appellant coming down from the first floor. She asked the appellant about the whereabouts of her daughter. He denied the presence of the prosecutrix in his house. Further, the PW-1 searched for her daughter on the ground floor and then she went up to the first floor. The room was bolted from outside. She opened it and found her daughter.

Informant took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside.

Question for Consideration

Whether the ‘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?

Appellant/accused was convicted for the offence of ‘sexual assault’ and added that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.

Analysis and Decision

Bench expressed that the act of pressing of the 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’.

 The above would certainly fall within the definition of the offence under Section 354 of the Penal Code, 1860.

“The act of pressing breast can be a criminal force to woman/girl with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.”

Further, the Court added that in the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fits into the definition of the offence as defined in Section 354 of IPC.

Court also noted that the prosecution’s case was not that the appellant had removed her top and pressed her breast. As such, there was no direct physical contact i.e. skin to skin with sexual intent without penetration.

Bench while concluding, held that the appellant shall be acquitted under Section 8 of the POCSO Act and convicted under minor offence under Section 354 of IPC.

In light of the above, criminal appeal was disposed of. [Satish v. State of Maharashtra, 2021 SCC OnLine Bom 72, decided on 19-01-2021]

Advocates for the parties:

Sk. Sabahat Ullah, Advocate for the appellant.

J. Khan, APP for the respondent.

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