Brief of HC Order declaring Groping a child's breasts without 'skin to skin' contact shall amount to #Molestation under the IPC but not the graver offence of Sexual Assault under the Protection of Children from Sexual offences (#POCSO) Act. - Vrankers

 Brief of HC Order declaring Groping a child's breasts without 'skin to skin' contact shall amount to #Molestation under the IPC but not the graver offence of Sexual Assault under the Protection of Children from Sexual offences (#POCSO) Act.

 Quick Brief of #BombayHighCourt's order declaring that #Groping a child's breasts without 'skin to skin' contact shall amount to #Molestation under the IPC but not the graver offence of #SexualAssault' under the Protection of Children from Sexual offences (#POCSO) Act. The Nagpur Bench that gave the judgment was a single judge bench, under Justice Pushpa Ganediwala. 

1. The appeal was made by the accused against the order passed by the Extra Joint Additional Sessions Judge, Nagpur, which convicted him of the offence punishable under Sections 354, 363(kidnapping) and 342(wrongful restraint) of the #IPC and Section 8 of POCSO Act, 2012. 

2. With reference to Section 8 of the POCSO Act, the appellant was sentenced to three years of rigorous imprisonment (R.I) and payment of Rs. 500 in case of default of the said punishment for one month. Section 363 of the IPC provided two years of R.I with the aforementioned default payment while Section 342 of the IPC made the appellant suffer R.I for six months, all of which were directed to run concurrently. 

3. According to the case of the prosecution as informed by the mother of the prosecutrix, the accused took the young girl (aged 12 years) in his house on the pretext of giving her a guava and pressed her breast and attempted to remove her salwar, during which the mother reached the spot and rescued her daughter. An #FIR was lodged immediately and the prosecution examined five witnesses, namely, the informant (mother), prosecutrix (survivor), prosecution witness (neighbour) who heard the shouts of the girl, WPSI - Kinake and the PSI who registered the crime against the accused. 

4. The learned #SpecialCourt after hearing both the sides found the accused guilty of the said crime and sentenced him as above while acquitting him of the offence punishable under Section 309 of the IPC. This judgment of conviction was challenged in the appeal. 

5. The single judge bench under Justice Pushpa Ganediwala heard the appeal filed by the accused and considered the question of whether the 'pressing of breast' and 'attempt to remove salwar' would fall within the ambit of 'sexual assault' as defined in Section 7 and punishable under Section 8 of the POCSO Act. 

6. Definition of 'sexual assault' under Sec 7 is as follows: 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. 

7. The judge observed that it wasn't the case of the prosecution that the accused removed her top and pressed her breast and considering the severe nature of the punishment provided for the offence, the court required stricter proof and serious allegations. 

8. The act of pressing of 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 the top and pressed her breast, would not fall in the definition of 'sexual assault'. Justice Ganediwala thus, pronounced that groping a child's breasts without 'skin to skin' contact shall amount to molestation under the IPC but not the graver offence of 'sexual assault' under the Protection of Children from Sexual offences (POCSO) Act.

 9. The court brought out the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime. And by this argument held that the act of pressing breast can be a criminal force to a woman/girl with intention to outrage her modesty. Therefore, the accused was slapped with a minimum punishment of one year for outraging a woman's modesty under Section 354 of the IPC instead of three years for sexual assault applicable under Section 8 of the POCSO Act. Both the offences carry a maximum imprisonment of five years. 10.The accused was held guilty under Sections 342 and 354 of the IPC and acquitted under Section 8 of the POCSO Act.