In an extremely controversial order, the Nagpur bench of Bombay High Court acquitted a man of sexual assault after it observed that pressing breasts of a child without direct "skin to skin" physical contact does not constitute "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act, Indian Express reported.
Mentioning that Section 8 of POCSO has provisions of five years' of rigorous imprisonment (RI), Justice Pushpa V Ganediwala on January 19, observed that "stricter proof and serious allegations are required".
"As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration". The HC bench observed that "the act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty."
"In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo RI," the judge said.
The maximum sentence for an offence under this section is five years and the minimum is one year.
"Evidently it is not the case of the prosecution that the appellant removed her top and pressed her breast," Justice Ganediwala said. "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'."
The court had found Ragde, guilty of offence of sexual assault of the 12-year-old girl under POCSO along with Sections 354 (assault or criminal force to woman with intent to outrage her modesty); 363 (punishment for kidnapping); and 342 (punishment for wrongful confinement) of the Indian Penal Code (IPC).
Ragde had moved the HC against the judgment through his lawyer Sabahat Ullah.
The HC said, "as per the POCSO's definition of sexual assault, the offence involves following necessary ingredients — act must have been committed with sexual intent, act must involve touching the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person or doing any other act with sexual intent which involve contact without penetration."
Justice Ganediwala observed: "As per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is an essential ingredient of the offence. The words 'any other act' encompasses within itself the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ejusdem generis(of the same kind). The act should be of the same nature or close to that."
In this case, from 2016, the convict had taken the girl into wrongful confinement and had pressed her breasts. As the girl did not return for a long time, the mother started looking for her and found her in the room of Ragde's house. The room was bolted from the outside.
She had met Ragde coming downstairs and had asked him about her daughter. Ragde had told her that he didn't know where her daughter was.
The girl told her mother that Ragde had held her by hand and taken her to his house on the pretext of giving her guava but he tried to remove her salwar and he pressed her breasts.
The mother then filed a police complaint against Ragde, who was convicted under both POCSO and IPC sections by the lower court.