'Even if 13-Yr-Old Girl's Breasts Were Not Developed': Calcutta HC Upholds Sexual Assault Conviction

It is immaterial whether the breasts of a 13-year-old girl are developed or not for committing the offence of sexual assault as long as it is proved that the accused had touched the specific body part of the girl with sexual intent, the Calcutta High Court has recently ruled.

The incident dates back to 2017 when a police case was registered against a man on the basis of a complaint by the mother of a 13-year-old. It was alleged that the accused had touched the girl inappropriately and kissed her on the face when there was no one at home, Live Law reported.

However, during the proceedings, the accused said the question of touching the girl’s breasts does not arise as the medical officer of the case had deposed that her breasts were not developed.

In response, Justice Bibek Chaudhuri said: “It is absolutely immaterial whether breasts of a 13-year-old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be termed as breast… even if her breasts are not developed due to certain medical grounds.”

Touching the vagina, penis, anus or breasts of a child or making the child touch the same of the offender with sexual intent does not only constitute the offence of sexual assault but whoever does any other act with sexual intent which involves physical contact without penetration amounts to sexual assault, the court observed.

The court also questioned the intent behind a grown-up man kissing a 13-year-old, saying: “In the instant case it is stated by the victim girl that the accused touched different parts of her body and also kissed her. Why should a grown-up man who is not related with the victim girl kiss her entering into her house when guardians were not present in the house.

“The sexual intent of a person can be gathered from the specific contact of the accused and the surrounding circumstances. There cannot be any direct evidence of sexual intent. In the instant case entering into the house of the de facto complainant in the absence of her and her husband, touching the body of the victim girl and kissing her shows that the accused had sexual intent and, therefore, the act involves physical contact by the accused with the victim and he was rightly convicted under Section 8 of the POCSO Act.”

The court also referred to the Supreme Court decision in Attorney General for India versus Satish and another wherein it had been held that the main ingredient of the offence of sexual assault under Section 7 of the Act was “sexual intent” and not “skin to skin” contact.

The court, hence, upheld the conviction of the accused under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act and under Section 448 of the IPC.

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