On the principle of proportionate punishment, he is convicted for a ‘minor offence’ under the IPC
The Nagpur bench of the Bombay High Court acquitted a man charged under the Protection of Children from Sexual Offences Act (POCSO) and convicted him under “minor offence” of Indian Penal Code (IPC) as, the bench said, “There is no direct physical contact i.e skin to skin with sexual intent without penetration.”
On December 14, 2016, the mother of a minor lodged a complaint with the Gittikhadan, Nagpur police station stating that on “the pretext of giving her [the minor] a guava in his house, Satish Ragde pressed her breast and attempted to remove her salwar”. The mother reached the spot and rescued her daughter who was found crying. The child told her mother that when the man tried to remove her salwar, she started crying but he put his hand on her mouth.
The police registered a FIR under Sections 354 (assault or criminal force to woman with intent to outrage her modesty); 363 (punishment for kidnapping); 342 (punishment for wrongful confinement) of the IPC; and Section 8 (punishment for sexual assault) of the POCSO. The special court framed charges under Sections 361 (kidnapping from lawful guardianship) of the IPC, along with the above-mentioned charges.
A single bench of Justice Pushpa Ganediwala was hearing a criminal appeal filed by Ragde challenging an order passed by Additional Sessions Judge, Nagpur, who convicted him and sentenced him to three years of imprisonment.
Justice Ganediwala took into consideration the submission of the prosecution and said, “it is not the case of the prosecution [that] Ragde removed her top and pressed her breast”. He is charged with sexual assault and the punishment for same is not less than three years and may extend up to five years.
The High Court held, “Considering the stringent nature of punishment provided for the offence, in the opinion of the court, stricter proof and serious allegations are required. The act of pressing of 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 the top and pressed her breast, would not fall in the definition of sexual assault.”
The court remarked, “It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.”
The bench acquitted Ragde under POCSO and convicted him under IPC. “In this case, having regard to the nature of the alleged act by Ragde and having regard to the circumstances, in the opinion of this court, the alleged act fit into the definition of the offence under section 354 of IPC,” the order read.
Source: https://www.thehindu.com/news/national/other-states/nagpur-bench-of-bombay-hc-overturns-mans-conviction-under-pocso/article33650284.ece
