Physical contact for sexual purposes without penetration constitutes sexual assault Act U/S 7 POCSO: Kerala High Court

The Kerala High Court has ruled that any overt act that involves physical contact for sexual purposes constitutes ‘sexual assault’, even if there is no penetration.

Judge A. Badharudeen noted that under Section 7 of the POCSO Act, which defines ‘sexual assault’, it includes within its ambit any other act which involves physical contact for sexual purposes.

The prosecutor’s case was that the accused, a teacher, took in a child studying in the 1st grade^street standard to the staff room and asked him to lie down on his body. When the injured party refused, he beat the child with a cane. Fearing this, whenever the victim was again called upon to lie on the body, he complied.

The accused was booked pursuant to Art. 9 letter f), m) (sexual assault), art. 10 (punishment for aggravated sexual assault) of the POCSO Act and Art. 23 (punishment for cruelty to a child) of the Juvenile Justice Act. The accused demanded exemption from the charges under Art. 9 letter f), m) and 10 of the Act. The trial judge dismissed the dismissal application. Contrary to this decision, the accused appealed to the Supreme Court.

The High Court affirmed the trial court’s view and observed that any physical contact made for a sexual purpose constituted sexual assault under the Act.

“By dividing the act of sexual assault in this way, the legislator had to deal with three instances. The third part involves performing any other act with sexual intent that involves physical contact without penetration. This overt act itself also constitutes sexual assault under Sections 9(f), (m) and 10 of the POCSO Act.”

The Court further noted that the Special Court may assume such mental state under Art. 30 of the POCSO Act. In a section where an offense under POCSO requires a culpable mental state, the special court may presume such mental state but the defense of the accused will be to prove that no such mental state existed.

Accordingly, the lawsuit was dismissed.

Counsel for the petitioners: Attorneys Prajit Ratnakaran, Abdul Raoof Pallipath, Rajesh V. Nair, E. Mohammed Shafi