The High Court of Sikkim has held that act of forcibly kissing and hugging a child can amount to ‘aggravated sexual assault’ as it has been defined under section 9 (m) of the Protection of Children From Sexual Offences Act, 2012.
A Special Court has convicted an accused under section 9(m) of the Protection of Children From Sexual Offences Act, 2012 which has been upheld by Justice Bhaskar Raj Pradhan. The fact of the case was that the accused had forcibly kissed and hugged a girl child of age 11 years. The Special Court had taken account of the facts deposed by the victim.
The issue which was considered by the court was, whether forcibly kissing the minor girl child of 11 years and hugging her amounts to ‘aggravated sexual assault’ as defined under section 9(m) of the Protection of Children From Sexual Offences Act, 2012.
Upholding the view of the Special Court the Hon’ble Sikkim High Court has said that whoever commits sexual assault on a child below 12 years is said to have committed aggravated sexual assault. “Sexual assault” is defined in Section 7 of the POCSO Act, 2012. 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.
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.
After having examined the impugned judgment as well as hearing the learned Counsels this Court is of the firm view that the impugned judgment of conviction is sound and brooks no interference. Section 10 of the POCSO Act, 2012 mandates punishment of imprisonment for a term which shall not be less than 5 years but which may extend to 7 years. The learned Special Judge has exercised her discretion to impose the minimum sentence in the facts of the present case which is perfectly justified. The order on sentence dated 22.05.2017 (sic) signed on 22.05.2018 in the circumstances is adequate.
