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Not intercourse assault if there’s no skin-to-skin contact: Bombay HC | India Information

MUMBAI: If there was “no direct physical contact – skin to skin with sexual intent, without penetration,” it would not constitute “sexual assault” under the Child Protection from Sexual Offenses Act (Pocso), the Supreme Court of Bombay A 39-year-old man who was sentenced by a court for printing on the breasts of a minor to three years in prison under section 8 of the law held the acquittal.
Justice Pushpa Ganediwala, of HC Nagpur Bank, said “Stricter evidence and serious allegations are needed” amid the harsh three to five year sentence that “sexual assault” entails under the Pocso Act.
“Obviously it is not the case with the prosecutor that the applicant took off her top and pressed it on her chest,” said Justice Ganediwala, adding: “Pressing the child’s chest at the age of 12 without any specific detail present. ” whether the top was removed or whether he stuck his hand in the top and pressed on her chest would not fall under the definition of “sexual assault” “.
But it would result in a penalty for harassment under Section 354 of the Indian Penal Code (IPC), the HC said, convicting him of the “minor offense”. He was sentenced to one year in prison.
The HC said the question before it came to whether “chest squeezing” and “attempting to remove salwar” would fall under the definition of “sexual assault” as defined in Section 7 and under Section 8 of the Pocso Act punishable. While Prosecutor MJ Khan argued that the offense fell under the definition of “sexual assault”, the HC considered it “impossible to accept the prosecutor’s submission”. The court said the “basic principle of criminal justice is that punishment should be proportional to the gravity of the crime”.
The Nagpur court sentenced the man last February under Section 8 of the Pocso Act and Section 354 of the IPC (assault or criminal violence intended to upset a woman’s modesty). The man had appealed against his belief.
The girl had testified that the defendant lured her into his house on a false pretext. She said he tried to remove her salwar and squeezed her chest. She tried to scream, but he covered her mouth and left the room after locking the door from the outside. Her mother went to his house while she looked for her. She had seen the defendant leave and when she reached the first floor the door was locked from the outside and her daughter was crying inside. She then went to the police station with her daughter to file an FIR, the HC noted.
The man was on bail. The HC issued an arrest warrant against him, saying that all of his other sentences should expire at the same time and that he would be entitled to a set-off for the prison sentence.