The controversial case of POCSO Act – no touch no sexual assault: Bombay High court
No direct physical contact i.e. skin to skin with sexual intent without penetration amounts to no sexual assault. The judgment was passed by the Bombay High Court in the case of Satish Ragde vs State of Maharashtra appeal.161.20 by Single Bench consisting of Hon’ble Justice Pushpa V. Ganediwala.
Facts of the case are such that On 14th December 2020, the mother of the prosecutrix lodged a report at police station gittikhadan, Nagpur asserting that the appellant took her daughter of age 12 years on the excuse of giving her guava, in the house and pressed her breast and tried to remove her salwar. At this point, her mother reached the spot and rescued her daughter.
Immediately first information report was lodged and crime came to be registered against the appellant vide crime no. 405/2016 for the offense punishable under sections 354, 363, 342 of the Indian Penal Code and section 8 of the POCSO Act.
Special Court framed the charge under sections 354, 363, 342, and 309 of the Indian Penal Code and section 8 of the POCSO Act, and the plea of the accused was recorded and thereafter the studying the case; the judgment and order dated 05.02.2020 was passed by the Extra Joint Additional Sessions Judge, Nagpur, by which appellant is convicted for the offenses punishable under sections 354, 363, 342 of the Indian Penal Code and section 8 of the POCSO Act.
The council from the side of Appellant argued on the question whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of sexual assault under sec 7 and section 8 of the POSCO Act. Because as per the definition of sexual assault a physical contact with sexual intent without penetration’ is an essential ingredient of the offense.
The appellant counsel further argued that regard to the testimony of PW-1(mother of prosecutrix), she is a hearsay witness. No doubt PW-1 does not claim to have seen the incident, however, her testimony would be relevant and admissible in evidence under Section 6 of the Evidence Act.
The act of pressing of breast of the child of 12 years of age, 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’. It would certainly fall within the definition of the offense under Section 354 of the Indian Penal Code.
The court stated that, “Assault or criminal force to a woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
Hence it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact or skin-to-skin contact with sexual intent without penetration.
The court held that the appellant is acquitted under section 8 of the POSCO Act and convicted under minor offense under section 354 and under section 342 of the Indian Penal Code.