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The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
The said Act also casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise. The police are also required to bring the matter to the attention of the
Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child.
Sexual Assault under POCSO Act
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgement passed on January 19, the detailed copy of which was made available now, held that there must be ‘skin to skin contact with sexual intent’ for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.
Justice Ganediwala modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for
sexually assaulting a 12-year-old girl.
As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat.
Once there, he gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the high court held.
While section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and under IPC section 354. The sentences were to run concurrently. The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
“Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” HC said.
“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 her breast, would not fall in the definition of sexual assault,” it said.
Justice Ganediwala further said in her verdict that “the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty”.
The POCSO Act defines sexual assault as when someone “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 court, in its verdict, held that this “physical contact” mentioned in the definition of sexual assault must be “skin to skin” or direct physical contact.
“Admittedly, it is not the case of the prosecution that the appellant 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,” the HC said.
You can download the POCSO Act in PDF format using the link given below.