Whether the ‘Pressing of Breast’ Would Fall within the Definition of ‘Sexual Assault’ U/S 7 of the POCSO Act? Answers Bombay HC

Whether the ‘pressing of breast’ would fall within the definition of ‘sexual assault’ u/s 7 of the POCSO Act? Answers Bombay HC

The question for consideration of Court in the case was, 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.

Section 7 of the POCSO Act states that, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.

The Court noted that, as per this definition, the offence involves the following necessary ingredient: (i) Act must have been committed with sexual intent. (ii) 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 involves physical contact without penetration.

In the present case, the Court held that, the appellant/ accused is convicted for the offence of ‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. The definition starts with the words “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent……’ 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.’ The act should be of the same nature or closure to that.

Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, 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’.

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It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code (Assault or criminal force to woman with intent to outrage her modesty).

So, the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty. The minimum punishment provided for this offence is one year, which may extend to five years and shall also be liable to fine, the Court added.

The Court emphasized that, it is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.

Section 7 of the POCSO Act, defines sexual assault and the minimum sentence provided is three years and Section 354 of the Indian Penal Code, which is related to outraging the modesty of a woman, prescribes minimum sentence of one year. 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 fit into the definition of the offence as defined in Section 354 of the Indian Penal Code.

In view of the above discussion, the 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 R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month. The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs.500/-, in default to suffer R.I. for one month, is maintained. The accused is on bail. His bail bond stands forfeited. Issue Non-bailable warrant against the appellant – accused. All the substantive jail sentences shall run concurrently and the appellant – accused is entitled for set off under Section 428 of the Code of Criminal Procedure.

Case Name: Satish v. The State of Maharashtra

Citation: CRIMINAL APPEAL NO. 161 OF 2020

Coram: PUSHPA V. GANEDIWALA, J

Whether the ‘pressing of breast’ would fall within the definition of ‘sexual assault’ u/s 7 of the POCSO Act? Answers Bombay HC

Also Read: The Benefit Of Probation Under PO Act Isn’t Excluded By The Provisions Of The Mandatory Minimum Sentence Prescribed For Offences Under IPC: SC

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