Whether offense of sexual assault under the POSCO Act is attracted if the accused touches the child's cheek without sexual intent?

Section 7 of the POCSO Act reads as under:

“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.”

. In my view, touching the cheeks without a sexual

intent would not attract the offence of ‘sexual assault’, as

defined under Section 7 of the POCSO Act. Primary evaluation of

the material on record does not suggest, applicant allegedly

touched the cheeks of the victim with a sexual intent.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.1189 OF 2021

Mohammad Ahmed Ulla Vs The State of Maharashtra 

CORAM : SANDEEP K. SHINDE J.

DATE : 27 th AUGUST, 2021.

Heard.

2 Applicant seeks his enlargement on bail in Crime

No.438 of 2020 dated 29th July, 2020 registered at the

instance of mother of the victim for the ofences punishable

under Sections 354, of the Indian Penal Code, 1860 and

Section 8, 9(m), 10 and 12 of the Protection of Children

From Sexual Ofences Act, 2021 (‘POCSO’ for short).

3 Applicant is 46 years old person. He runs a

chicken centre. Victim at the material time was 8 years old

girl. Her mother lodged First Information Report. She stated,

applicant touched cheeks of her daughter inside the shop

premises, where he was running the business. Whereafter,

applicant was arrested. Investigation in the case is over and

the final report has been filed.

4 Section 7 of the POCSO Act reads as under:

“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.”

. In my view, touching the cheeks without a sexual

intent would not attract the offence of ‘sexual assault’, as

defined under Section 7 of the POCSO Act. Primary evaluation of

the material on record does not suggest, applicant allegedly

touched the cheeks of the victim with a sexual intent. He is

in custody since July, 2020. Although, the complainant was

impleaded as respondent, it appears from the orders

passed by the Court that complainant had requested

prosecutor to argue on her behalf.

5 In consideration of these facts, in my view, case

is made out for releasing the applicant on bail. Hence, the

following order:

ORDER

(i) The applicant in Crime No. 438 of 2020 registered

with Rabodi Police Station, Thane, he shall be released on

executing PR bond for the sum of Rs.25,000/- with one or

more sureties in like sum.

6 The application is accordingly allowed and

disposed of.

7 It is made clear that observations made here-inabove

be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

influence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

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