Touching private parts of minor with sexual intent is sexual assault, says HC

The Bombay high court recently said that merely touching the private parts with sexual intent was sufficient to make out a case of sexual assault and rejected the appeal of a man convicted in 2017 under the POCSO (Protection of Children from Sexual Offences) Act.

The single-judge bench of justice Sarang Kotwal was hearing the appeal filed by the Vakola resident challenging his conviction for sexually assaulting a five-year-old girl in 2013 by touching and pinching her private parts.

Advocate Sushan Mhatre, appearing for the petitioner, said that his client had been falsely implicated in the case as he had had an altercation with the victim’s father. While the alleged incident occurred on December 11, 2013, the FIR was registered on December 13. As the medical examination did not reveal any injuries, including redness, on the private parts of the minor, the prosecution was doubtful, he said.

In view of these submissions, Mhatre sought that the special POCSO court order be set aside.

The state through additional public prosecutor Yogesh Dabke, however, argued that the special court had rightly convicted the man based on the evidence collected by the investigating officer and the deposition of the victim; hence, the appeal was not maintainable.

After hearing both sides, the bench said, “The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of section 7 read with section 8 of the POCSO Act.”

The bench further said that as the victim while deposing had not shown any sign of tutoring by her mother or anyone else, nor was she aware of the alleged quarrel between her father and the convict, the conviction by the special court, based on her innocence, could not be interfered with, and dismissed the appeal.

As per the FIR, the girl was playing with her friends near her home on December 11 when the convict took her to another place where he closed her eyes and touched and pinched her private parts. Due to the pain, she went home and narrated the incident to her mother. The mother took her to Cooper hospital but no injury was found. The man was arrested the next day.

During the trial in the special POCSO court in 2017, the victim identified the man. The mother and other witnesses also deposed against the accused. The man argued that he had been falsely implicated as he had had a quarrel with the girl’s father.

The special court, however, relied on the deposition of the minor and the fact that residents of the locality had beaten up the man after coming to know of his act and handed him over to police, to reach the conclusion that the man was guilty of sexually assaulting the victim under section 8 of the POCSO Act and sentenced him to five years of rigorous imprisonment.