March 12, 2019
In this recent case, the High Court of Sikkim has held that forcibly hugging and kissing a child below 12 years of age amount to “aggravated sexual assault” under Section 9(m) of the POCSO Act, 2012.
Case name: Raju Prasad v. State of Sikkim
In the present appeal, the Appellant has challenged his conviction under Section 9(m) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Section 9(m) of POCSO Act envisages punishment for aggravated sexual assault on a child below 12 years of age.
The allegation against the Appellant was that he forcibly hugged and kissed a minor girl of 11 years in the back seat of his car. The narration of facts deposed by the minor victim was also corroborated by her school mates present at the time of the incident and some just before and after the incident.
The issue that fell for consideration before the High Court of Sikkim in the case was whether forcibly kissing the minor victim a girl child of 11 years of age and hugging her amounts to “aggravated sexual assault” as defined in Section 9(m) of the POCSO Act, 2012?
The High Court while answering the issue in the affirmative opined that whoever commits sexual assault on a child below 12 years is said to have committed aggravated sexual assault.
That according to Section 7 of the POCSO Act, whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
In view of the aforesaid facts and definition of “sexual assault”, the High Court held that the act of forcibly kissing the minor victim, a child below 12 years of age and hugging her in the back seat of a car in the absence of her guardian by a 27 year old male cannot but be with sexual intent. The act of forcibly kissing and hugging involves physical contact although without penetration. Thus it is cogent that the said act amounts to sexual assault. As the sexual assault was committed on a child below 12 years of age it amounts to aggravated sexual assault as defined under Section 9(m) of the POCSO Act, 2012.
The entire case can be accessed here.