A single Judge Bench of Bombay High Court consisting of Justice Pushpa Ganediwala held that ‘Pressing of child’s Breast without skin to skin contact is not the graver offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POCSO) Act, 2012 but it is still an offence under section 354 of Indian Penal Code, 1860.
The Nagpur Bench of the Bombay High Court observed in a case at hand that it is not the case of the prosecution that the appellant 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. So, the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty and it would amount to molestation under Indian Penal Code,1860. Therefore, minimum punishment provided for this offence is one year, which may extend to five years and shall also be liable to fine.
The court while modifying the order of the sessions court that held a 39 year old man guilty of sexual assault for groping her breast and removing her salwar had so opined.
It further stated 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’.
It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code. (outraging a woman's modesty) to one year imprisonment for the minor offence (Satish v State of Maharashtra).
The court interpreted the words "physical contact" in the definition of sexual assault to mean "direct physical contact- direct physical contact i.e. kin -to- skin contact with sexual intent without penetration."
Further the court held that "It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime".
On December 14, 2016, according to the case of prosecution, the accused took the young girl to his house, tried to contrive and mislead her and gave her a guava. He pressed her breast and attempted to remove her salwar. Her mother reached the spot at that time and tried to 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 the appellant guilty under sections Sections 354, 363(kidnapping) and 342(wrongful restraint) of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
The High Court convicted the man under sections 342 and 354 of the IPC, 1860 while acquitted him under Section 8 of the POCSO Act,2012. The accused is on bail. His bail bond stands forfeited.