‘No Sexual Assault If No Skin To Skin Contact With Minor’: Bombay HC Acquits Man Sentenced Under POCSO

The Bombay High Court acquitted a 39-year-old man imprisoned for three-years by a trial court under Section 8 of Protection of Children from Sexual Offences (POCSO) for pressing the breasts of a minor.

The court held that an offence cannot be called ‘sexual assault’ if there is ‘no direct physical contact, that is, skin to skin with sexual intent, without penetration,’ Times of India reports.

Justice Pushpa Ganediwala from the Nagpur bench of the High Court claimed that the strict punishments of three-five years’ imprisonment for sexual assault under POCSO call for “stricter proofs and stringent allegation.”

“Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. 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 the top and pressed her breast, would not fall in the definition of ‘sexual assault,” Justice Ganediwala was quoted in the report.

However, the concerned offender will be convicted for a solitary year in jail for molestation under Section 354 of the Indian Penal Code (IPC).

The court has, therefore, in the said case, differentiated between the offence of molesting a minor from over her clothes, as opposed to the same action with clothes removed or slipping hands inside the clothes. Using this loophole, offenders can escape more stringent punishments under POCSO as opposed to the IPC.

In the said case, while specific details regarding removal of clothes weren’t clear, public prosecutor M J Khan argued that acts of ‘pressing of breasts’ and ‘attempt to remove salwar’ should fall under the definition of ‘sexual assault’ as per Section 7 and punishable under Section 8 of the POCSO Act.

However, the court claimed that “it was not possible to accept” the prosecutor’s submission and asserted that the “basic principle of criminal jurisprudence is that punishment shall be proportional to seriousness of crime.”

The concerned man was sentenced last February under Section 8 of the POCSO act and under Section 354 in Nagpur against which he appealed.

Now, the High Court has issued a non-bailable warrant against him and stated that other sentences against him will be active concurrently. However, the person will be entitled for a set-off of the time that he has already spent in the custody.