Groping a child’s breasts would not amount to “Sexual Assault” under POCSO Act: Bombay High Court

 on 22 01 2021 on 24 01 apeal161.20.odt 1IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCHCRIMINAL APPEAL NO. 161 OF 2020Satish s o Bandu Ragde aged about 39 years occupation Private Work r o Gond Mohalla DeepakNagar Behind SurendragarhDurga Mandir Nagpur.... APPELLANTVersusThe State of Maharashtrathrough Police Station Officer Gittikhadan Nagpur.… RESPONDENTShri Sk. Sabahat Ullah Advocate for the appellant.Shri M.J. Khan APP for the respondent.….. CORAM : PUSHPA V. GANEDIWALA J. JANUARY 19 2021.ORAL JUDGMENT : Heard Shri Sk. Sabahat Ullah learned counsel forthe petitioner and Shri Khan learned APP for the respondent.2.This is an appeal against the judgment and order dated05.02.2020 in Special Child Protection Case No. 217 passedby the Extra Joint Additional Sessions Judge Nagpur by which the on 22 01 2021 on 24 01 apeal161.20.odt 2appellant is convicted for the offence punishable under Sections354 363 and 342 of the Indian Penal Codeand Section 8 of the Protection of Children from SexualOffences Act 2012 inCrime No. 4016 registered at Police Station Gittikhadan Nagpur District Nagpur.3.For the offence punishable under Section 8 of thePOCSO Act read with Section 354 of the IPC the appellant issentenced to suffer R.I. for three years and to pay fine of Rs. 500 in default of fine to suffer R.I. for one month. For the offence punishable under Section 363 of the IPC the appellant is sentenced to suffer R.I. for two years and to pay fineof Rs. 500 in default of fine to suffer R.I. for one month. For the offence punishable under Section 342 of the IPC the appellant is sentenced to suffer R.I. for six months and to payfine of Rs. 500 in default of fine to suffer R.I. for one month. All the substantive jail sentences were directed to runconcurrently. The appellant is given set off for the period ofsentence he has already undergone.4.The prosecution story in brief is as under : on 22 01 2021 on 24 01 apeal161.20.odt 3i)On 14.12.2016 the informant(PW 1) lodged a report at police station Gittikhadan Nagpur stating therein that the appellant took her daughter(prosecutrix) aged about 12 years on the pretext of giving herguava in his house and pressed her breast and attempted to removeher salwar. At that point of time the informant reached the spotand rescued her daughter. Immediately she lodged FirstInformation Report. On the basis of the said FIR crime came to beregistered against the appellant accused vide Crime No. 405 of2016for the offence punishable under Sections 354 363and 342 of the IPC and under Section 8 of the POCSO Act.5.The police started investigation. After investigation charge sheet came to be filed in the Special Court Nagpur againstthe appellant.6.The Special Court framed chargeagainst theappellant accused under Sections 361 354 342 and 309 of theIPC and under Section 8 of the POCSO Act. The said charge wasread over and explained to the appellant accused to which hedenied. His plea was recorded.7.In order to establish the guilt against the appellant on 22 01 2021 on 24 01 apeal161.20.odt 4accused the prosecution examined in all five witnesses and alsobrought on record the relevant documents.PW 1 is the informant mother of the prosecutrix. PW 2 is the prosecutrix.PW 3 is the prosecution witnesswent to bring guava.As she did not come back for a long time she started searchingfor her. Her neighbour told her that the appellant who wasstaying in the vicinity of their house took her daughter to hishouse and showed her the house of the appellant. PW1 wentthere calling “Laxmi Laxmi”. She saw the appellant comingdown from the first floor. She asked the appellant about thewhereabouts of her daughter. He denied the presence of theprosecutrix in his house. PW 1 searched for her daughter onthe ground floor and then she went up to first floor. The roomwas bolted from outside. She opened it and found her on 22 01 2021 on 24 01 apeal161.20.odt 6daughter. Her daughter was crying. She took out her daughterfrom that room and her daughter narrated the incident that onthe pretext of giving guava to her the appellant brought her tohis house and pressed her breast and when he tried to removeher knicker she shouted. Thereafter he went out after boltingthe room from outside. Immediately PW 1 along with herdaughter proceeded for Police Station and lodged report. 13.PW 2 Prosecutrix testified that on the day ofincident when she was going to bring guava the appellantcaught her hand and told her that he will provide guava to herand he took her to his house. He tried to remove her Salwarand pressed her breast. Then she shouted. The appellantpressed her mouth by his hand. The appellant went down byclosing the door of the room from outside. Thereafter hermother opened the door and entered the room and brought heroutside. Then they went to Police Station for lodging report.14.PW 3 the neighbour is examined on the point thatshe had heard the shouts of a girl and she informed PW 1 on 22 01 2021 on 24 01 apeal161.20.odt 7about it. 15.A perusal of the testimony of PW 1 and PW 2 on thepoint of incident would reveal that both the witnesses areconsistent on the point that the appellant pressed the breast ofthe prosecutrix. With regard to removing of knicker though inher chief PW 1 stated that the appellant accused was trying toremove knicker of her daughter however in cross examinationshe has corrected her statement and deposed that she told thepolice that the appellant tried to remove Salwar of herdaughter. The prosecutrix deposed about removing of hersalwar. So there is no confusion with regard to whether theaccused tried to remove salwar or knicker. 16.Now the question for consideration of this court is whether the ‘pressing of breast’ and ‘attempt to remove salwar’would fall within the definition of ‘sexual assault’ as definedunder Section 7 and punishable under Section 8 of the POCSOAct. For better appreciation of evidence it would be necessary tolook into the definition of ‘sexual assault’ which is reproduced on 22 01 2021 on 24 01 apeal161.20.odt 8below:7. Sexual assault Whoever with sexual intenttouches the vagina penis anus or breast of thechild 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 whichinvolves physical contact without penetration issaid to commit sexual assault.As per this definition the offence involves the followingnecessary ingredients :(i)Act must have been committed with sexual intent.(ii)Act must involve touching the vagina penis anus or breast of the child.ormaking the child touch the vagina penis anus orbreast of such person or any other person.ordoing any other act with sexual intent whichinvolves physical contact without penetration.17.The appellant accused is convicted for the offence of‘sexual assault’. As per the definition of ‘sexual assault’ a ‘physicalcontact with sexual intent without penetration’ is an essentialingredient of the offence. The definition starts with the words on 22 01 2021 on 24 01 apeal161.20.odt 9“Whoever with sexual intent touches the vagina penis anus orbreast of the child or makes the child touch the vagina penis anusor breast of such person or any other person or does any other actwith sexual intent…...’ The words ‘any other act’ encompasseswithin itself the nature of the acts which are similar to the actswhich have been specifically mentioned in the definition on thepremise of the principle of ‘ejusdem generis.’ The act should be ofthe same nature or closure to that.18.Evidently it is not the case of the prosecution thatthe appellant removed her top and pressed her breast. Thepunishment provided for offence of ‘sexual assault’ is imprisonmentof either description for a term which shall not be less than threeyears but which may extend to five years and shall also be liable tofine. Considering the stringent nature of punishment providedfor the offence in the opinion of this Court stricter proof andserious allegations are required. The act of pressing of breastof the child aged 12 years in the absence of any specific detailas to whether the top was removed or whether he inserted hishand inside top and pressed her breast would not fall in thedefinition of ‘sexual assault’. It would certainly fall within the on 22 01 2021 on 24 01 apeal161.20.odt 10definition of the offence under Section 354 of the Indian PenalCode. For ready reference Section 354 of the Indian PenalCode is reproduced below :“354. Assault or criminal force to woman with intentto outrage her modesty. Whoever assaults or usescriminal force to any woman with the intention tooutrage her modesty shall be punished withimprisonment of either description for a term whichshall not be less than one year but which may extendto five years and shall also be liable to fine.”19.So the act of pressing breast can be a criminalforce to a woman girl with the intention to outrage hermodesty. The minimum punishment provided for this offenceis one year which may extend to five years and shall also beliable to fine.20.It is the basic principle of criminal jurisprudencethat the punishment for an offence shall be proportionate tothe seriousness of the crime. on 22 01 2021 on 24 01 apeal161.20.odt 1121.Section 7 of the POCSO Act defines sexual assaultand the minimum sentence provided is three years and Section354 of the Indian Penal Code which is related to outraging themodesty of a woman prescribes minimum sentence of oneyear. In the instant case having regard to the nature of thealleged act by the appellant and having regard to thecircumstances in the opinion of this Court the alleged act fitinto the definition of the offence as defined in Section 354 ofthe Indian Penal Code.22.The learned counsel for the appellant stronglyargued with regard to testimony of PW 1 she being a hearsaywitness. No doubt PW 1 does not claim to have seen theincident however her testimony would be relevant andadmissible in evidence under Section 6 of the Evidence Act.The principle of res gestea would be applicable being part ofthe same transaction. Evidently she went to the house of theaccused searching for her daughter she saw the accusedcoming down from the first floor she inquired with theappellant accused about her daughter he refused her on 22 01 2021 on 24 01 apeal161.20.odt 12presence she searched for her daughter on the ground floor she went upwards she found the door of the room bolted fromthe outside she opened the door she found her daughtercrying she brought her daughter out of room her daughternarrated the incident to her. All these events form the parts ofthe same transaction. 23.The learned counsel for the appellant also arguedwith regard to the mental capacity of the girl which wasobserved by the learned trial Court while recording hertestimony. It is true that as per demeanor of the witness shemight not have that mental intelligence however the learnedcounsel could not point out from the record that she was not acompetent witness and her answers to the questions were notrational. Secondly immediately after the incident she narratedthe incident to her mother and on that basis the FirstInformation Report came to be lodged and on material point offacts the testimonies of both mother and daughter areconsistent. on 22 01 2021 on 24 01 apeal161.20.odt 1324.PW 3 is the witness who informed PW 1 about thefact that she heard the noise of her daughter from the house ofthe appellant. The learned counsel pointed out some omissionsin her testimony with regard to shouting of the girl “Maa Maa”.These are not the material omissions to disbelieve theprosecution story. Fact remains that she informed PW 1 thatshe heard shouts from the house of the appellant and PW 1went there and she found her daughter. Other witnesses areformal in nature.25.The learned APP read out Section 7 of the POCSOAct which defines sexual assault and submitted that the actwhich has been proved by the prosecution “pressing of breast”comes within the definition of sexual assault under Section 7 ofthe POCSO Act.26.It is not possible to accept this submission for theaforesaid reasons. Admittedly it is not the case of theprosecution that the appellant removed her top and pressedher breast. As such there is no direct physical contact i.e. skin on 22 01 2021 on 24 01 apeal161.20.odt 14to skin with sexual intent without penetration.27.In view of the above discussion this Court holds thatthe appellant is acquitted under Section 8 of the POCSO Actand convicted under minor offence u s 354 of IPC andsentenced him to undergo R.I. for one year and to pay fine ofRs.500 in default of fine to suffer R.I. for one month. Thesentence for the offence punishable under Section 342 of theIndian Penal Code i.e. six months and fine of Rs.500 indefault to suffer R.I. for one month is maintained. Theaccused is on bail. His bail bond stands forfeited. Issue Non bailable warrant against the appellant accused. All thesubstantive jail sentences shall run concurrently and theappellant accused is entitled for set off under Section 428 ofthe Code of Criminal Procedure.28.Criminal Appeal stands disposed of accordingly.JUDGE GS. 

Summary: 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.