Jaipur: Interpreting what constitutes a sexual assault with a minor under the Protection of Children from Sexual Offences (POCSO) Act, the Nagpur bench of the Bombay high court has ruled that there must be a “skin-to-skin contact” with sexual intent, and mere groping is not sufficient.
A single-judge bench of Justice Pushpa Ganediwala was hearing an appeal against the conviction in a case where the accused had allegedly taken a minor girl to his house under the garb of offering her a guava and pressed her breasts and partially stripped her.
Upon disclosure of the incident by the girl to her mother, a first information report (FIR) was lodged against the accused. According to Bar and Bench, the accused was convicted by the trial court under POCSO Act and the IPC. He then approached the high court challenging the conviction.
The court then considered whether pressing the breasts of a child without removing the top falls into the category of sexual assault defined under Section 7 of the POCSO Act.
Under section 7 of the POCSO Act, sexual assault is defined 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 sexual intent that involves physical contact without penetration.
The judge held: “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, the act would not fall in the definition of ‘sexual assault’.”
Therefore, the court acquitted the convict under POCSO Act while recognising the act of the accused as use of criminal force with the intention to outrage a woman’s modesty defined under Section 354 of the Indian Penal Code.
According to the report, sexual assault under Section 7 of POCSO carries a punishment of imprisonment between 3 to 5 years, while the minimum punishment for outraging modesty of woman under Section 354 of IPC is only 1 year.