In POSCO Act cases, use of term 'chest' must be understood as referring to 'breast': Kerala High Court

The Kerala High Court recently observed that although the terms 'chest' and 'breast' are distinct, a child victim's statement that an accused grabbed his chest with sexual intent must be understood as referring to the 'breast' for the purpose of constituting sexual assault under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. [Aboobacker v State of Kerala & anr]

Justice A Badharudeen observed that while there is a clear medical and anatomical distinction between the terms, the expression 'chest' is commonly used as a synonym for 'breast' in cases involving sexual offences.

The judge observed that while there is a clear medical and anatomical distinction between the terms, the expression 'chest' is commonly used as a synonym for 'breast' in cases involving sexual offences.

He explained that when a child says that an accused grabbed his chest with sexual intent, the only meaning that can reasonably be drawn is that the accused touched the child's breast amounting to sexual assault under Section 7 of the POCSO Act.

The Court made the observation in an appeal filed by a 58-year-old man convicted under the POCSO Act.

"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. Therefore, the evidence available would show that the appellant/accused had committed the offence defined under Section 7, sexual assault punishable under Section 8," the Court added.

The appeal arose from a case involving the sexual assault of a 12-year-old boy in Malappuram district,

In May 2022, when the child had gone to a nearby shop to purchase a mosquito repellent, the accused approached him from behind and grabbed his stomach and chest.

He caught hold of the child's hand and offered him ₹50 to accompany him to a vacant house.

The child managed to escape, ran home and narrated the incident to his parents, following which a crime was registered under the POCSO Act.

Subsequently, a special POCSO court found the accused guilty of aggravated sexual assault under Section 9(l) read with Section 10 of the POCSO Act and sentenced him to 7 years of rigourous imprisonment with a fine of ₹50,000.

Aggrieved, the accused approached the High Court in appeal.

The accused argued that merely touching a child's chest would not amount to sexual assault and added that the prosecution had failed to establish repeated acts of sexual assault against the child, which was necessary to attract the offence of aggravated sexual assault.

The Court rejected the accused's first contention by clarifying that in the context of sexual assault, the use of the term 'chest' must be understood as referring to the 'breast' for the purpose of Section 7.

However, it found merit in the accused's contention that the conviction for aggravated sexual assault could not be sustained as the prosecution had failed to establish that the offence was committed more than once or repeatedly against the child.

Accordingly, the Court set aside the conviction and sentence of the special court and instead convicted the accused under Sections 7 and 8 of the POCSO Act.

Consequently, it reduced his sentence from 7 years to 3 years rigourous imprisonment and reduced the fine from ₹50,000 to ₹5,000.

Advocates TU Sujith Kumar and Winston KV appeared for the convict.

Public Prosecutor MA Shihab appeared for the State.

[Read Judgment]