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The Bombay high court acquitted an appellant under the Protection of Children from Sexual Offences Act ruling that pressing of the breast of a child without "skin to skin contact with sexual intent" does not constitute "sexual assault" under the POCSO Act.
It, however, convicted the man under Section 354 of IPC and sentenced him to undergo rigours imprisonment for one year and to pay a fine of Rs 500.
The Nagpur Bench of Bombay high court passed the order on January 19 while hearing a petition by Satish, who convicted by a local court under Sections 354, 363 and 342 of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
"The appellant/ accused is convicted for the offence of 'sexual assault'. As per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is an essential ingredient of the offence," read the court order dated January 19.
"The act of pressing of the 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 top and pressed her breast, would not fall in the definition of 'sexual assault'. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code," it said.
"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," read the court order.