Penetrative Sexual Assault under

Mere Touching of Private Parts with Sexual Intent Constitutes Penetrative Sexual Assault under Section 4 of POCSO- Bombay HC


The Bombay High Court, in X vs State of Maharashtra (Criminal Bail Application No.1207 of 2022), denied bail to a man accused of sexually assaulting a minor, highlighting that even mere touching of private parts with sexual intent constitutes penetrative sexual assault under Section 4 of the Protection of Children from Sexual Offences Act (POCSO).

Facts of the Case:

The accused, the uncle of the victims, allegedly sexually abused his nieces, aged 9 and 13, between 2016-2019 during their visits to his home. The allegations included showing explicit material, taking nude photos, and inappropriate touching of the victims’ private parts with his private parts.

Contention of the Petitioner:

The defence argued that the accusations were fabricated due to a family property dispute. They also contested the lack of visible injuries on the victims and questioned the credibility of the allegations.

Response of the Respondent:

The prosecution only relied on statements of the victims recorded under CrPC Sections 161 and 164, electronic communications. There was no strong medical evidence against the accused.

Court’s Observation:

The Court observed that even slight penetration or touching with sexual intent amounts to penetrative sexual assault under Sections 3(a) and 3(b) of the POCSO Act. The court emphasized the vulnerability of children, the significance of believing their statements, and the betrayal of trust by the accused.

Court’s Decision:

The Court denied bail, expressing concerns about potential tampering with witnesses and the adverse impact on the victims if the accused were released. The court acknowledged the lack of strong medical evidence due to delayed reporting but emphasized the credibility of the victims’ statements.

The Court stated “Keeping in mind this position, it cannot be said that the allegations against the applicant are totally concocted or false. The applicant indeed betrayed the trust reposed in him by the victim and succeeded in executing his illegal act of molesting her which definitely constitutes offence not only under the POCSO Act but also under the provision of the I.P.C.”

In concluding, the court stated that the accused’s actions constituted offences under both the POCSO Act and the Indian Penal Code (IPC), and his release could adversely affect and traumatize the minors. The denial of bail aimed to protect the victims and ensure the accused’s accountability.

By Adv Deeksha Rai

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