READ ORDER | Pressing Breasts Without Disrobing Not “Sexual Assault” As Per POCSO Act But Offence Under Sec 354 IPC

A single bench of Justice Pushpa Ganediwala was hearing an appeal against a sessions court order that held a 39-year-old man guilty of sexual assault for groping a 12- year- old- girl and removing her salwar. The court has now modified the sentence and convicted the man under Section 354 IPC (outraging a woman’s modesty) to one year imprisonment for the minor offence (Satish v State of Maharashtra).

Case:

According to the case of the prosecution, on December 14, 2016, the accused took the young girl to his house on the pretext of giving her a guava, pressed her breast and attempted to remove her salwar. At that point of time, the mother reached the spot and rescued her daughter. An FIR was registered almost immediately. The prosecution examined five witnesses, the mother, survivor, a neighbour who heard the child scream for her mother, and two police officers.

The court held him guilty under sections:

• Sections 354, 363 (kidnapping)
• Section 342(wrongful restraint)

…of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act).

Bombay High Court (Nagpur Bench)

Sexual assault under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman’s modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offences carry a maximum imprisonment of five years. The court noted,

Considering the stringent nature of punishment provided for the offence(under POCSO), in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of 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 court held, adding,

The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty.

The court analysed the defined terms as per law and stated:

Now the question for consideration of this court is, 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. For better appreciation of evidence, it would be necessary to look into the definition of ‘sexual assault’.

Section 7 of the POCSO Act defines sexual assault as:

The court held,

It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.

The High Court has held the man guilty under sections 342 and 354 of the IPC while acquitting him under section 8 of the POCSO Act.