Touching Boy’s Chest With Sexual Intent Can Attract Sexual Assault Offence Under POCSO Act: Kerala High Court
The Bench noted that anatomical distinction between chest and breast has no significance under Section 7 POCSO Act, and modified conviction from aggravated sexual assault to sexual assault.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that grabbing or touching a child's chest with sexual intent fulfills the ingredients of "sexual assault" under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act. The Court clarified that although there exists a distinct medical and anatomical difference between "chest" and "breast," "chest" is commonly used as a synonym for "breast" in sexual molestation cases, and the breast covers a larger area of the chest between the neck and abdomen.
The observation came while the Court partly allowed an appeal filed by an accused who challenged his conviction for aggravated sexual assault for sexually assaulting a 12-year-old boy. The Court observed that while the act constituted sexual assault under Section 7, the prosecution failed to prove repeated or multiple instances of assault necessary to sustain an aggravated charge under Section 9(l) read with Section 10 of the POCSO Act. Consequently, the Court modified the conviction and reduced the sentence from seven years to three years of rigorous imprisonment.
A Bench comprising Justice A. Badharudeen observed, “…Going by the definition a distinct medical and anatomical difference to be noticeable in between the two terms, though in sexual molestation case 'chest' is commonly used as a synonym for the word 'breast'. When considering the ingredients of the offence of sexual assault as defined u/s 7 of the POCSO Act, spoken by a victim stating that the accused grabbed on his chest with sexual intent the only inference to be drawn is that the accused grabbed on the Breast, which, in fact covers a larger area of the chest in between the neck and the abdomen. Therefore, the contention raised by the learned counsel for the appellant merely relying on the medical and anatomical difference between ‘chest’ and ‘breast’ has no significant and is set at rest”.
Advocate T.U. Sujith Kumar appeared for the appellant and M.A. Shihab, Public Prosecutor appeared for the respondent.
According to the prosecution, on May 14, 2022, around 6:30 p.m., a 12-year-old boy went to a local shop at Arimbra Junction to buy mosquito repellent. While waiting for the shop owner, the accused approached him from behind, grabbed his stomach, and grabbed his chest.
When the child attempted to shake off the hold, the accused grabbed his hand, pulled him, and offered Rs 50 to accompany him to a nearby vacant residence. The victim fled the scene and disclosed the incident to his parents, leading to the registration of an FIR at the Kondotty Police Station under Sections 7, 8, 9(l), and 10 of the POCSO Act.
By judgment dated January 15, 2024, the Special Court for POCSO convicted the accused under Section 9(l) read with Section 10 of the POCSO Act. The trial court sentenced him to seven years of rigorous imprisonment along with a fine of Rs 50,000, while acquitting him of other offences. Aggrieved by the verdict, the convict preferred a criminal appeal before the High Court.
Evaluating the evidence, the Court observed that although the victim vaguely referred to an earlier act two months prior, he failed to disclose any specific details of the past event, nor did he mention it in his statement before the Magistrate under Section 164 Cr.P.C. The Court held that the ingredients of Section 9(l), which requires repeated or multiple sexual assaults, were not established.
“…As per Oxford dictionary chest means 'the top part of the body between the neck and stomach'. Webster's dictionary defines the word chest as 'the upper front part of the body of humans and some animals, between the stomach and the neck, containing the heart and the lungs. Oxford dictionary defines the breast as either of the two soft protruding organs on the front of a woman's body that produce milk or the similar smaller and underdeveloped organs on a man's body...”, the Bench had noted.
The Court allowed the appeal in part by setting aside the conviction and seven-year sentence under Section 9(l) read with Section 10 of the POCSO Act. Instead, the Court convicted the appellant under Section 7 read with Section 8 of the POCSO Act and sentenced him to undergo rigorous imprisonment for three years with a fine of Rs 5,000 (and default simple imprisonment for two weeks).
Cause Title: Aboobacker v. State of Kerala & Anr. (Neutral Citation: 2026:KER:51118)
Appearances:
Appellant/Accused: T.U. Sujith Kumar, Winston K.V, Advocates.
Respondents/State: M.A. Shihab, Public Prosecutor.