Pressing Breasts Without ‘skin to skin’ Contact is Not Sexual Assault Rules Bombay High Court

The Nagpur Bench of the Bombay High Court recently stated that there must be physical contact with sexual intent and mere groping would amount to molestation under the Indian Penal Code but not the heinous offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POSCO) Act.

Five witnesses, the mother, the survivor, a neighbour who heard the child scream for her mother, and two police officers were interviewed by the prosecution. According to the prosecution case of December 14, 2016, on the pretext of giving her a guava, the accused took the young girl to his home, squeezed her breast and tried to strip her salwar. The mother reached the location at that point in time and saved her daughter. Almost suddenly, an FIR was registered. 

A single-judge bench of Justice Pushpa Ganediwala modified the conviction of a 39-year-old man, sentenced to jail for groping a 12- year- old- girl and removing her salwar, sentenced the man under Section 354 IPC (outraging a woman's modesty), giving him one-year imprisonment for the offence.

The judge observed that under POCSO, sexual harassment is described as a crime in which the act may have been done with sexual intent and includes touching the child's private parts or letting the child touch the accused's private organs. The court further observed that, under the terms of POCSO, the sexual act includes committing some other act with sexual intent requiring physical co-operation.

The court was of the view that serious allegations corroborated with stricter proofs are necessary to substantiate the act of pressing the breast of a 12-year-old child. From the facts of the case, it is not clear as to whether the top was removed or the accused inserted his hand inside her top to press her breast. Hence the act of the accused would not fall under the definition of sexual assault. Justice Ganediwala further added that the prosecution story does not establish that the accused removed her clothes and pressed her breasts. Physical contact without sexual intent does not amount to sexual assault as per the facts of the present case.

Therefore the accused was not found guilty by the High Court under sections 342 and 354 of the IPC thus acquitting him according to Section 8 of the POSCO Act.