Sunday, 24 January 2021

When pressing the breast of a minor girl will not amount to sexual assault as per the POCSO Act?

  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 defined

under Section 7 and punishable under Section 8 of the POCSO

Act. For better appreciation of evidence, it would be necessary to

look into the definition of ‘sexual assault’, which is reproduced

below:

7. Sexual assault – 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.

As per this definition, the offence involves the following

necessary ingredients :

(i) Act must have been committed with sexual

intent.

(ii) 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

involves physical contact without penetration.

17. The appellant/ accused is convicted for the offence of

‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. 

18. Evidently, it is not the case of the prosecution that

the appellant removed her top and pressed her breast. The

punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided

for the offence, in the opinion of this Court, stricter proof and

serious allegations are required. 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 top and pressed her breast, would not fall in the

definition of ‘sexual assault’. It would certainly fall within the

definition of the offence under Section 354 of the Indian Penal

Code.

25. The learned APP read out Section 7 of the POCSO

Act, which defines sexual assault and submitted that the act

which has been proved by the prosecution “pressing of breast”

comes within the definition of sexual assault under Section 7 of

the POCSO Act.

26. It is not possible to accept this submission for the

aforesaid reasons. Admittedly, it is not the case of the

prosecution that the appellant removed her top and pressed

her breast. As such, there is no direct physical contact i.e. skin

to skin with sexual intent without penetration.

27. 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

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH

CRIMINAL APPEAL NO. 161 OF 2020

Satish  Bandu Ragde, Vs  The State of Maharashtra

CORAM : PUSHPA V. GANEDIWALA, J.

Dated: JANUARY 19, 2021.


Heard Shri Sk. Sabahat Ullah, learned counsel for

the petitioner and Shri Khan, learned APP for the respondent.

2. This is an appeal against the judgment and order dated

05.02.2020 in Special Child Protection Case No. 28 of 2017 passed

by the Extra Joint Additional Sessions Judge, Nagpur, by which the

appellant is convicted for the offence punishable under Sections

354, 363 and 342 of the Indian Penal Code (hereinafter referred to

as IPC) and Section 8 of the Protection of Children from Sexual

Offences Act, 2012, (hereinafter referred to as POCSO Act), in

Crime No. 405 of 2016 registered at Police Station Gittikhadan,

Nagpur, District – Nagpur.

3. For the offence punishable under Section 8 of the

POCSO Act read with Section 354 of the IPC, the appellant is

sentenced 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 fine

of 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 pay

fine of Rs. 500/-, in default of fine, to suffer R.I. for one month.

All the substantive jail sentences were directed to run

concurrently. The appellant is given set off for the period of

sentence, he has already undergone.

4. The prosecution story, in brief, is as under :

i) On 14.12.2016, the informant (mother of the

prosecutrix) (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 her

guava, in his house and pressed her breast and attempted to remove

her salwar. At that point of time, the informant reached the spot

and rescued her daughter. Immediately, she lodged First

Information Report. On the basis of the said FIR, crime came to be

registered against the appellant / accused vide Crime No. 405 of

2016 (Exh. 1) for the offence punishable under Sections 354, 363

and 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, against

the appellant.

6. The Special Court framed charge (Exh. 11) against the

appellant / accused under Sections 361, 354, 342 and 309 of the

IPC and under Section 8 of the POCSO Act. The said charge was

read over and explained to the appellant / accused, to which he

denied. His plea was recorded.

7. In order to establish the guilt against the appellant /


accused, the prosecution examined in all five witnesses and also

brought on record the relevant documents.

PW-1 is the informant - mother of the prosecutrix.

PW-2 is the prosecutrix.

PW-3 is the prosecution witness (neighbour).

PW-4 is a WPSI – Kinake.

PW-5 is the PSI who registered crime against the

appellant / accused on the report of the informant.

8. The Special Court recorded the statement of the

appellant / accused under Section 313 of the Code of Criminal

Procedure.

9. After hearing both the sides, the learned Court found

the appellant / accused guilty of the crime registered against him

and passed the judgment of conviction and sentenced him as above.

The learned Special Court, however, acquitted the appellant /

accused of the offence punishable under Section 309 of the IPC.

This judgment of conviction is impugned in this appeal.

10. I have heard Shri Sabahat Ullah, learned counsel for

the appellant and Shri Khan, learned Additional Public Prosecutor

for the respondent - State. I have also perused the record with the

assistance of both the counsel.

11. At the outset, the informant – PW-1 and the

prosecutrix – PW-2 are the star witnesses. The age of the

prosecutrix at the relevant time was 12 years and this fact is

not seriously disputed by the learned counsel for the appellant.

12. The informant - PW-1 - the mother of the

prosecutrix deposed that the incident took place on

14.12.2016. On that day at about 11.30 AM, her daughter –

the prosecutrix (name kept undisclosed) went to bring guava.

As she did not come back for a long time, she started searching

for her. Her neighbour told her that the appellant, who was

staying in the vicinity of their house, took her daughter to his

house and showed her the house of the appellant. PW1 went

there calling “Laxmi, Laxmi”. She saw the appellant coming

down from the first floor. She asked the appellant about the

whereabouts of her daughter. He denied the presence of the

prosecutrix in his house. PW-1 searched for her daughter on

the ground floor and then she went up to first floor. The room

was bolted from outside. She opened it and found her

daughter. Her daughter was crying. She took out her daughter

from that room and her daughter narrated the incident that on

the pretext of giving guava to her, the appellant brought her to

his house and pressed her breast and when he tried to remove

her knicker, she shouted. Thereafter he went out, after bolting

the room from outside. Immediately, PW-1 along with her

daughter proceeded for Police Station and lodged report.

13. PW-2 – Prosecutrix testified that on the day of

incident, when she was going to bring guava, the appellant

caught her hand and told her that he will provide guava to her

and he took her to his house. He tried to remove her Salwar

and pressed her breast. Then she shouted. The appellant

pressed her mouth by his hand. The appellant went down by

closing the door of the room from outside. Thereafter, her

mother opened the door and entered the room and brought her

outside. Then they went to Police Station for lodging report.

14. PW-3, the neighbour, is examined on the point that

she had heard the shouts of a girl and she informed PW-1

about it.

15. A perusal of the testimony of PW-1 and PW-2 on the

point of incident would reveal that both the witnesses are

consistent on the point that the appellant pressed the breast of

the prosecutrix. With regard to removing of knicker, though in

her chief PW-1 stated that the appellant/ accused was trying to

remove knicker of her daughter, however, in cross examination

she has corrected her statement and deposed that she told the

police that the appellant tried to remove Salwar of her

daughter. The prosecutrix deposed about removing of her

salwar. So there is no confusion with regard to whether the

accused 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 defined

under Section 7 and punishable under Section 8 of the POCSO

Act. For better appreciation of evidence, it would be necessary to

look into the definition of ‘sexual assault’, which is reproduced

below:

7. Sexual assault – 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.

As per this definition, the offence involves the following

necessary ingredients :

(i) Act must have been committed with sexual

intent.

(ii) 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

involves physical contact without penetration.

17. The appellant/ accused is convicted for the offence of

‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical

contact with sexual intent without penetration’ is an essential

ingredient of the offence. The definition starts with the words -

“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…...’ 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.’ The act should be of

the same nature or closure to that.

18. Evidently, it is not the case of the prosecution that

the appellant removed her top and pressed her breast. The

punishment provided for offence of ‘sexual assault’ is imprisonment

of either description for a term which shall not be less than three

years but which may extend to five years, and shall also be liable to

fine. Considering the stringent nature of punishment provided

for the offence, in the opinion of this Court, stricter proof and

serious allegations are required. 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 top and pressed her breast, would not fall in the

definition of ‘sexual assault’. It would certainly fall within the

definition of the offence under Section 354 of the Indian Penal

Code. For ready reference, Section 354 of the Indian Penal

Code is reproduced below :

“354. Assault or criminal force to woman with intent

to outrage her modesty. - Whoever assaults or uses

criminal force to any woman, with the intention to

outrage her modesty, shall be punished with

imprisonment of either description for a term which

shall not be less than one year but which may extend

to five years, and shall also be liable to fine.”

19. So, the act of pressing breast can be a criminal

force to a woman/ girl with the intention to outrage her

modesty. The minimum punishment provided for this offence

is one year, which may extend to five years and shall also be

liable to fine.

20. It is the basic principle of criminal jurisprudence

that the punishment for an offence shall be proportionate to

the seriousness of the crime.


21. Section 7 of the POCSO Act, defines sexual assault

and the minimum sentence provided is three years and Section

354 of the Indian Penal Code, which is related to outraging the

modesty of a woman, prescribes minimum sentence of one

year. In the instant case, having regard to the nature of the

alleged act by the appellant and having regard to the

circumstances, in the opinion of this Court, the alleged act fit

into the definition of the offence as defined in Section 354 of

the Indian Penal Code.

22. The learned counsel for the appellant strongly

argued with regard to testimony of PW-1, she being a hearsay

witness. No doubt PW-1 does not claim to have seen the

incident, however, her testimony would be relevant and

admissible in evidence under Section 6 of the Evidence Act.

The principle of res gestea would be applicable, being part of

the same transaction. Evidently, she went to the house of the

accused searching for her daughter, she saw the accused

coming down from the first floor, she inquired with the

appellant - accused about her daughter, he refused her

presence, she searched for her daughter on the ground floor,

she went upwards, she found the door of the room bolted from

the outside, she opened the door, she found her daughter

crying, she brought her daughter out of room, her daughter

narrated the incident to her. All these events form the parts of

the same transaction.

23. The learned counsel for the appellant also argued

with regard to the mental capacity of the girl, which was

observed by the learned trial Court while recording her

testimony. It is true that as per demeanor of the witness, she

might not have that mental intelligence, however, the learned

counsel could not point out from the record that she was not a

competent witness and her answers to the questions were not

rational. Secondly, immediately after the incident, she narrated

the incident to her mother and on that basis the First

Information Report came to be lodged and on material point of

facts, the testimonies of both, mother and daughter are

consistent.


24. PW-3 is the witness, who informed PW-1 about the

fact that she heard the noise of her daughter from the house of

the appellant. The learned counsel pointed out some omissions

in her testimony with regard to shouting of the girl “Maa Maa”.

These are not the material omissions to disbelieve the

prosecution story. Fact remains that she informed PW-1 that

she heard shouts from the house of the appellant and PW-1

went there and she found her daughter. Other witnesses are

formal in nature.

25. The learned APP read out Section 7 of the POCSO

Act, which defines sexual assault and submitted that the act

which has been proved by the prosecution “pressing of breast”

comes within the definition of sexual assault under Section 7 of

the POCSO Act.

26. It is not possible to accept this submission for the

aforesaid reasons. Admittedly, it is not the case of the

prosecution that the appellant removed her top and pressed

her breast. As such, there is no direct physical contact i.e. skin

to skin with sexual intent without penetration.

27. 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 R.I. for one year and to pay fine of

Rs.500/-, in default of fine to suffer R.I. for one month. The

sentence for the offence punishable under Section 342 of the

Indian Penal Code i.e. six months and fine of Rs.500/-, in

default to suffer R.I. for one month, is maintained. The

accused is on bail. His bail bond stands forfeited. Issue Nonbailable

warrant against the appellant – accused. All the

substantive jail sentences shall run concurrently and the

appellant – accused is entitled for set off under Section 428 of

the Code of Criminal Procedure.

28. Criminal Appeal stands disposed of accordingly.

JUDGE


Print Page

No comments:

Post a comment