“Pressing of breast and attempting to remove salwar does not fall under the definition of ‘sexual assault’”: Bombay High Court

Lack of direct physical skin-to-skin contact without sexual intent and without penetration would not amount to ‘sexual assault’ under the Protection of Children from Sexual Offences Act,2012. A single-judge bench consisting of Justice Pushpa. V. Ganediwala while adjudicating the matter in Satish v. State of Maharashtra; [2021 SCC OnLine Bom 72] dealt with the identification of what is a sexual offence and under which statute can it be punished.

The prosecutrix was 12 years old. Her mother who was the informant had given her a task to perform. However, the prosecutrix did not return for a long time. The informant started searching for the prosecutrix. It was notified to the informant that the appellant has taken the prosecutrix to his house in order to show her the house. The informant asked the appellant about the whereabouts of her daughter and he denied the presence of the daughter in his house. The informant searched for her daughter in the appellant’s house and found her bolted in a room. The daughter stated that the appellant pressed her breast and tried undressing her, in revolt of which, the daughter shouted. In order to punish the daughter, the appellant bolted her from outside.

The Appellant was convicted for the offence of sexual assault. 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.” Section 8 of the POCSO Act states that; “Whoever, commits sexual assault, shall be punished with 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.”

Upon considering the aforesaid facts, the Court held that the act of pressing the breast of the child in the absence of specific details as to how he committed the sexual offence i.e., whether he removed the top or he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The Court held that such an offence would fall under Section 354 of the Indian Penal Code i.e., Assault or criminal force to a woman with intent to outrage her modesty. As there was no direct physical skin-to-skin contact, with sexual intent without penetration, the appellant was acquitted under Section 8 of the POCSO Act and was convicted under Section 354 of IPC. The Court concluded by stating; “The act of pressing breast can be a criminal force to woman/girl with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.”

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