The Bombay High Court’s Nagpur Bench has ruled that groping the breasts of a girl without ‘skin-to-skin touch’ would lead to molestation under The Indian Penal Code, but not the extreme crime of ‘sexual harassment’ under the Sexual Offense Protection of Children (POCSO) Act.
The point was made by a single bench of Justice Pushpa Ganediwala when amending the order by a session court that convicted a 39-year-old man of sexual harassment for groping the breast of a 12-year-old girl and removing her salwar. Under Section 354 of the IPC, the court has now convicted the man for (outraging the modesty of a woman) to one year in jail for a minor crime (Satish v State of Maharashtra).
In contrast to the outrage against a woman’s integrity under section 354 of the IPC, which attracts a minimum term of just one-year, sexual harassment under section 8 of the POCSO Act will carry a minimum suspension of three years. All offences carry a punishment of five years’ imprisonment.
“The Court observed, stricter facts and serious charges are required in view of the stringent nature of the penalty imposed for the offence (under POCSO). The act of pressing the child’s breast aged 12 years, in the absence of certain information as to whether the act of pressing the child’s breast aged 12 years whether the top was removed, or he placed his hand inside the top and pressed her breast did not fall under the ‘sexual assault’.
Facts of the Case:
According to the December 14, 2016 prosecution complaint, the accused took the young girl to his house under the pretext of feeding her guava, he grabbed her breast and attempted to remove her salwar. The mother reached the location at that very moment on time and saved her daughter. The FIR was reported immediately. Five witnesses were investigated by the defense, including the mother, the survivor, the neighbor who heard the child screaming, and two police officers.
The court stated further, “The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty”. The court explained the term “physical contact” in the meaning of sexual assault to mean “actual physical contact-direct physical contact, i.e., skin to skin with sexual intent without penetration,” the court said.
The POCSO Act, Section 7, describes sexual harassment as, Sexual abuse is said to be perpetrated by someone who touches the child’s vagina, penis, anus, or breast with sexual intent, or lets the child touch the vagina, penis, anus, or breast of that person or some other person, or performs any other act of sexual intent involving physical contact without penetration.
‘It is the core precept of criminal jurisprudence that punishment for an offense is commensurate with the severity of the offense,’ the court ruled.
Under sections 354, 363(kidnapping) and 342(wrongful restraint) of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO A), the court found him guilty.
Under sections 342 and 354 of the IPC, the High Court found the man guilty while acquitting him under section 8 of the POCSO Act.