Mumbai court on posterior i.e. buttocks being private body part

With rising sexual assault cases, everyday the courts in India have to face different questions. On 12^th February, 2021 a Special POCSO Court in Mumbai held that posterior i.e., buttocks are also considered as a private body part and any person who touches it would be liable of sexual assault.

In this case titled as the State of Maharashtra vs. Sahar Ali Shaikh, a ten years old girl was returning to her home when four boys were laughing at her. After sometime when she was going to temple with a friend, one of the boys came near her and touched her bums while his three friends were laughing at her. When her father came to know about the incident, he ran to the spot finding the boy there who then ran away. The father of the victim then filed a police complaint. Charges under Sections 354 and 354-A of the IPC dealing with sexual assault and under Section 10 of the POCSO Act, 2012 (aggravated sexual assault) were filed against the boy. The accused pleaded not guilty and claimed that the victim has failed to produce any eye witness. The counsel for the accused submitted that bums is not a private part of the body.

The Court noted that merely for the reason that there were no eye witnesses to the incident and that the friend who was with the prosecutrix was not examined, these cannot be the reason to discard and disregard the testimony of the victim girl. The judge M.A. Baraliya rejected the arguments of the accused and held that the term private parts is to be interpreted in the context of what is meant by it in our society. The Court observed that the accused has not touched either vagina, breast or anus of the girl, but touched her bums and this touching as stated under section 7 of POCSO Act, 2012, if is to the other organs, those categorised, then it must be with sexual intention. The Sessions Judge relied on 2005 Supreme Court judgment involving KPS Gill who was found guilty of outraging the modesty of an IAS officer after he slapped her on her posterior. The apex court had in that case held that by touching the body of the complainant with culpable intention, the accused had committed the offence. 

 Therefore, the Court saying that it was obvious that touching the buttocks of the girl cannot be said to be without sexual intention held the person guilty of the said offences. The Court referred to Section 42 of POCSO Act which states that where an act or omission constitute an offence punishable under this Act and also under any other law for the time being in force then the offender who is found guilty of such offence shall be liable to punishment only under such law which provides for punishment which is greater in degree. Since Section 10 of the POCSO Act, 2012 provides minimum sentence up to five years and maximum up to seven years which is greater than Section 354 which provides minimum and maximum punishment of one and three years respectively, therefore the accused was held to be punished and sentenced under Section 10 of the POCSO Act, 2012 only.

– Vaishali Jain, Paralegal – Child Safety at Work