25% OFF on all LCI Courses. Offer valid till 5th Oct. Use Code: DUS25
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


Pressing Breasts Without Disrobing Not "Sexual Assault" As Per Pocso Act But Offence Under Sec 354 IPC : Bombay High Court

KEY TAKEAWAYS

The Nagpur Bench of the Bombay High Court ruled that tapping a child's breasts without 'skin-to-skin touch' would constitute intrusion under the Indian Penal Code, but not the more extreme crime of 'sexual assault' under the Act on the Protection of Children from Sexual Offenses (POCSO).

A single bench of Justice Pushpa Ganediwala made the point, thus changing the decision, a court of sessions that found a 39-year-old man guilty of exaggerated abuse on a 12-year-old girl and taking her salwar.

The court has now sentenced the man under Section 354 IPC (outraging the modesty of a woman) to one year's imprisonment for a minor offence (Satish v Maharashtra State).

FURTHER DETAILS

Sexual harassment under Section 8 of the POCSO Act will result in a minimum sentence of three years relative to the exaggeration of a woman's modesty under section 354 of the IPC, which is subject to a minimum penalty of only one year. Both offences are subject to a mandatory incarceration of five years.

In the concept of sexual harassment , the court interpreted the term "physical contact" as implying "direct physical contact- direct physical contact i.e. skin -to- skin contact with sexual intent without penetration."

BACKGROUND

As per the prosecution case, on 14 December 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. However, soon the mother reached the spot and rescued her daughter.

An FIR was registered almost immediately. The prosecution examined five witnesses, the mother, survivor, a neighbour who heard the child scream for her mother, and two police officers.

The sessions court held him guilty under Sections 354, 363 (kidnapping), and 342 (wrongful restraint) of the Indian Penal Code and also under Section 8 of the Protection of Children from Sexual Offences Act, 2012.

POCSO

POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography. It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished. The Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. Protection of Children from Sexual Offences Act, 2012 received the President’s assent on June 19, 2012.

POCSO- Section 7

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.

COURT’S VIEWPOINTS

It is not the case of the defence that the appellant stripped her top and squeezed her breast. As such, there is no overt physical touch, i.e., no sexual contact with skin without penetration.

The fundamental premise of criminal jurisprudence is that the sentence for an offense is proportionate to the severity of the offence.

PUBLIC OPINION AND STANCE

Activists and child rights bodies have blasted the Bombay High Court's latest decision that there is no sexual harassment if there is no 'skin-to-skin' touch.

The apex child rights agency of the country, the National Commission for the Protection of the Rights of the Child (NCPCR), urged the Government of Maharashtra to make an immediate appeal against the recent judgment of the High Court in Bombay on Monday (25 January).

The Chief of the NCPCR, Priyank Kanoongo, claimed that the words "skin-to-skin with sexual intention without penetration" must also be checked in the judgment and the State should take care of this as it seems to be disrespectful to the minor survivor in the case.

In that case, though the exact specifics of the removal of garments were not explicit, M J Khan argued that the 'pain of breasts' and 'attempt to remove salwar' should come under the scope of 'sexual harassment' as laid down in Section 7 and that they should be prosecuted under Section 8 of the POCSO Act.

Activist Kavita Krishnan, secretary of All India Progressive Women's Association, called it an "outrageous judgement" that goes against the letter of the law.

ACCORDING TO YOU, IS THIS JUDGEMENT JUSTIFIED?! IS THE STANCE OF MAHARASHTRA HC VALID? LET US KNOW YOUR OPINIONS IN THE COMMENTS BELOW!

To download the original copy of the judgment, click here


"Loved reading this piece by SHIVEK J.?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - SHIVEK J. 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query