Groping of Breasts Without Removal of Dress Not Sexual Assault Under POCSO But Under IPC : Bombay HC

In an unusual turn of events in which A single-judge bench of Hon'ble Bombay HC was hearing an appeal by a person convicted of Sexually Assaulting a minor girl, Bombay HC overturned the convict's conviction from Sexual Assault under POCSO to under Sec 354 IPC(Outraging a Women's Modesty).

Meanwhile altering the conviction of the accused, the Court stated that the sexual assault under POCSO Act is committed when the act involves an act of sexually assaulting by touching the private parts of the child or making the child touch the private parts of the person. Further, the court said that the provisions of the POCSO Act involve committing any other act with a sexual intention that involves physical contact without penetration.

The Court noticed that "Admittedly, it is not the case of the prosecution that the accused 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." Further, the court also said that to consider the 'stringent' punishment under sexual assault, "stricter proof and serious allegations are required".

The court remarked that "The act of groping the breast of a 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 her top with the intention to grope her, would not fall under the definition of ‘sexual assault', it would certainly fall within the definition of section 354 of the IPC, which penalizes outraging the modesty of a woman."

CORAM- PUSHPA V. GANEDIWALA, J.