In the case of RP vs The State of West Bengal, the Calcutta High Court held on 31^st March 2022 that it is immaterial whether the breasts of a 13-year-old girl are developed or not in order to constitute the offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act [POCSO], 2012, if it is proved that the accused had touched the specific part of the body of the girl with sexual intent.

Facts leading to the Case

A police complaint was registered in 2017 by the mother of a victim girl who was aged about 13 years on the date of filing of the complaint alleging that the accused had come to their house in the absence of the complainant. While finding the minor daughter playing in the house, the accused caught hold of her hand and dragged her inside the house, and touched her breast and other parts of the body. He also kissed her on her face and thereby outraged her modesty. When the minor daughter cried out and struggled to set herself free from the clutches of the accused, he fled away.

Thereby, the accused was convicted of committing offence punishable under Sections 448 (Punishment for house-trespass) and 354 (Assault or criminal force to woman with intent to outrage her modesty) of the IPC and also under Section 8 (Punishment for sexual assault) of the POCSO Act by the Trial Court.

Dissatisfied with the said order of the Trial Court, the accused filed an appeal in the High Court.

The Counsel on behalf of the State contended that the sexual intent of a person can be gathered from the specific contact of the accused and the surrounding circumstances. Therefore, it is clearly evident from the circumstances leading to this case, the act of touching the body of the victim and kissing her shows that the accused had sexual intent and thus, involves physical contact by the accused with the victim. Hence, fulfilling the requirements of Section 7 (Sexual assault) of the POCSO Act.  

Observations of the High Court

• Considering the findings of the various court judgments and interpretation of the provision contained in Section 7 of the POCSO Act, the Hon’ble Court observed that the very object of enacting the POCSO Act is to protect the children from sexual abuse and if a narrow interpretation is accepted, it would lead to a detrimental situation, defeating the objective of the Act. Hence, the High Court held that the most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin-to-skin” contact with the child.
• The Court also observed that it is immaterial whether the breasts of a 13 year old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be held and term as breast for the purpose of Section 7 of the POCSO Act even if her breasts are not developed due to certain medical grounds.
• Considering the lascivious act of the accused-appellant, the court found him guilty of committing the offence of sexual assault and sentenced him to undergo rigorous imprisonment for 3 years and to pay Rs. 10,000, in default.

Vaishali Jain, Advocate & Associate – Child Safety at Work & Surbhi Singh