S.7 POCSO Act | Squeezing & Pulling Breast Of Minor Girl Without 'Skin-To-Skin' Contact Amounts To Sexual Assault: Orissa High Court

The Orissa High Court has held that squeezing and pulling the breast of a minor girl, even though the same were done without making any “skin-to-skin” contact, would amount to 'sexual assault' as defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') which is punishable under Section 8 thereof.While upholding the finding of guilt against the appellant for committing sexual assault upon the victim, the Single Bench of Dr. Justice Sanjeeeb Kumar Panigrahi notably observed–“The contention that in the absence of skin-to-skin contact the act would not constitute sexual assault is no longer res integra. The Supreme Court has unequivocally clarified that a narrow or pedantic interpretation to Section 7 of the POCSO Act that would defeat the very object and purpose of the enactment.”On 26.08.2021, the victim was travelling from Raikia to G. Udayagiri in a bus. She was seated on a right-side window seat of the said bus. When the bus took a halt at a stoppage, the appellant allegedly approached from outside and suddenly squeezed and pulled the breast of the victim by putting his hand through the bus window. The victim raised an alarm, pursuant to which her father/the informant chased the appellant. However, the appellant allegedly assaulted the informant and forcibly took away a sum of Rs. 5000/-.Upon investigation and trial, the Additional Sessions Judge-cum-Special Court under POCSO Act, Phulbani convicted the appellant under Section 354 (outraging modesty of woman) of IPC and under Section 8 (sexual assault) of the POCSO Act but acquitted him of the charge under Section 392 (robbery) of IPC. Being aggrieved by the conviction and sentence, the appellant preferred this criminal appeal. After hearing the arguments advanced by both the sides, the Court first delved to determine whether the victim was indeed a minor. The trial Court had relied upon her matriculation certificate along with other educational records to come to a conclusion that she was 17 years 5 months 8 days old on the date of occurrence, warranting invocation of the stringent POCSO Act. The High Court found no reason to impeach such credible evidence.Justice Panigrahi then examined the ingredients of Section 7 which says “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”.The Judge was of the view that the third limb of the provision encompasses acts which, though not amounting to penetrative assault, nevertheless involve physical contact actuated by sexual intent. “In the instant case, the evidence on record prima facie establishes that the Appellant caused physical contact with the victim child by pressing her right side breast while she was seated inside the bus. Such an act, by its very nature, squarely falls within the ambit of Section 7 of the Act, being an act involving physical contact with sexual intent without penetration. Accordingly, the essential ingredients of “sexual assault” as defined under the statute stand satisfied,” he held.It was further held that any act of touching the specified sexual parts of the body of a child, if actuated by sexual intent, squarely falls withing the ambit of the “sexual assault” as defined under Section 7 of the Act.“For the proper interpretation of Section 7 of the POCSO Act, it is instructive to advert to the plain and grammatical meaning of the expressions employed therein. The Legislature has consciously used the term 'touches' in reference to specific and intimate parts of the body, while employing border expression “physical contact” in relation to any other act done with sexual intent without penetration.”A contention was made that there was no prolonged “skin-to-skin” contact indicating sexual intent. However, the Court nixed such argument by citing the Supreme Court's landmark ruling in Attorney General for India v. Satish & Anr., LL 2021 SC 656 which reversed the narrow interpretation adopted by the Bombay High Court. The top Court held that 'skin-to-skin' contact cannot be held as a sine qua non for constituting the offence of sexual assault under Section 7 of the POCSO Act. The relevant portion of the observations is quoted thus–“The very object of enacting POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to very determinable situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual...

S.7 POCSO Act | Squeezing & Pulling Breast Of Minor Girl Without 'Skin-To-Skin' Contact Amounts To Sexual Assault: Orissa High Court

Jyoti Prakash Dutta

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