Only skin-to-skin contact with the child’s breasts will be considered as an offence under POCSO, Act, otherwise, it will only be considered as molestation under IPC and not as “Sexual Assault”. In the judgment of Satish vs. State of Maharashtra [Criminal Appeal no.161 of 2020], the HC bench consisting of Hon’ble Justice Pushpa V Ganediwala gave the judgment by stating the above-cited reasons.
In the instant case, December 14, 2016, the accused, took the young girl to his house on the pretext of giving her guava, pressed her breast, and attempted to remove her Salwar, an FIR was registered immediately. The prosecution examined five witnesses, the mother, survivor, a neighbor who heard the child scream for before her mother, and two police officers and hence, was held guilty for sexually assaulting a 12-year-old girl, for which now he has been sentenced to 1 year of imprisonment u/s 354 of IPC [outraging a woman’s modesty].
“Sexual Assault” u/s 8 of the POCSO, Act attracts a minimum sentence of 3 years, whereas outraging the woman’s modesty u/s 354 of IPC only attracts imprisonment for one year. In the present case, HC Bench alleged that stricter proof and serious allegations are needed for giving the punishment u/s 8 of the POCSO, Act as compared to Section 354 of IPC.
The bench stated 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’.”
In the definition of “Sexual Assault”, interpretation of “Physical contact” was given the most importance, which is assumed as direct physical contact i.e. skin -to- skin contact with sexual intent without penetration.
In the present case, it was observed that the accused didn’t remove her top but only groped her breasts from the outside. Hence, there was no direct physical contact between the accused and the victim.
Hence, the HC held him guilty for u/s 354, 363 (Kidnapping), and 342 (Wrongful Restraint) of IPC. But not held guilty u/s 342, 354 of the IPC and u/s 8 of POCSO Act.
The HC held that groping a child’s breasts without ‘skin-to-skin contact’ would amount to molestation under the Indian Penal Code but not the graver offence of ‘sexual assault’ under the Protection of Children from Sexual Offenses (POCSO) Act.
