The act of touching a minor's breast constitutes sexual assault under Section 8 of the POCSO Act, affirming that sexual intent is sufficient to establish culpability irrespective of skin contact.

JUDGMENT:

Sanjeeb K.Panigrahi, J.

1. The Appellant has filed the instant Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973/ Section 415 (2) of Bharatiya Nagarik Suraksha Sanhita, 2023, invoking the appellate jurisdiction of this Court. The appeal is preferred against the Judgment dated 01.10.2014 passed by the learned Additional Sessions Judge-cum-Special Court under POCSO Act, Phulbani, in C.T. Case No.56 of 2021 arising out of Raikia P.S. Case No.82 of 2021, whereby the appellant was convicted for the offences under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 354 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs 5,000/- and in default of payment of fine undergo rigorous imprisonment for two months.

I. FACTUAL MATRIX OF THE CASE

2. The brief facts of the case are as follows:

(i) On 26.08.2021, at about 3 PM, the informant, along with the victim, her parents, and her cousin sister, was travelling from the village Raikia to G. Udayagiri in a Pakhiraj Bus. During the journey, the victim was seated on the right-side window seat of the said bus.

(ii) The Victim alleged that at the relevant time, while the bus was parked in from of the UCO- Bank Chowk, an unknown person approached from outside the bus and pressed breast.

(iii) Due to the said incident, the victim raised alarm, whereupon the informant immediately alighted from the bus and attempted to apprehend the said person. However, the said person assaulted the informant and forcibly took away a sum of Rs 5000/- from his purse. Subsequently, they ascertained the said person was Abinash @ Papu Digal of village Gedingia.

(iv) On that basis of the written report lodged by the informant, Raikia P.S. Case No. 82 of 2021 was registered against the accused. During the investigation, the I.O visited the spot, examined the witness, and recorded their statements under Section 161 of Cr.P.C. The I.O. also took into consideration the relevant documents relating to the age of the victim and found that she was aged about 17 years 5 months and 8 days at the time of the incident.

(v) Subsequently, charges under Section 354 and 392 of the I.P.C. r/w Section 8 of the POCSO Act has been framed against the Appellant. Thereafter, trial commenced before the learned Trial Court. Upon completion of the trial and after hearing the arguments advanced by both the parties, the learned Trial Court convicted the Appellant under of I.P.C. and under Section 8 of the POCSO Act and acquitted him of the charges of Section 392 of IPC .

Being aggrieved by the aforesaid facts and circumstances, the Petitioner has been constrained to approach this Court by way of the present criminal appeal.

II. SUBMISSIONS ON BEHALF OF THE APPELLANT

3. The learned counsel for the Appellant respectfully and earnestly made the following submissions in support of his contentions:

(i) The Appellant submits that the judgment of conviction and order of sentence passed by the learned Additional District and Sessions Judge, Phulbani passed in C.T. No. 56 of 2021 arising out of P.S. Case No. 82 of 2021, corresponding to C.T. Case No. 56 of 2021 on the file of the Additional District and Session Judge-cum-Special Court under POCSO Act, Phulbani, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonmen