Fondling the breast of a minor without 'skin to skin contact' cannot be termed as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. This was held by Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court on 19th January.
The court held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault as per the definition provided in the POCSO Act.
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“The act of pressing of breast of the 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 the top and pressed any breast, would not fall in the definition of sexual assault. It would certainly fall within the definition of section 354 of Indian Penal Code (outraging modesty),” the judge said.
The court further added that sexual assault on a minor would involve an act committed with sexual intent that involves physical contact without penetration, as per Section 7 of the POCSO Act.
The bench modified the order of a session court, wherein a 30-year-old man was sentenced to three years of imprisonment for sexually assaulting a 12-year-old-girl, under the POCSO Act and Section 354 of the IPC. The Bombay High Court acquitted him under the POCSO Act but upheld his conviction under the Indian Penal Code.
