Bombay High Court recently noted that kissing on lips and touching private parts of a minor would not prima facie amount to unnatural offence under Section 377 of the Indian Penal Code.
Noting that the accused has been charged with the POCSO offences punishable with maximum imprisonment of five years and the accused had been in jail for almost a year. He was arrested over the complaint filed by a 14-year old boy’s father.
“The statement of the victim as well as the First Information report prima facie indicate that the Applicant had touched the private parts of the victim and had kissed his lips. In my considered view, this would not prima facie constitute offence under section 377 of IPC,” noted Justice Anuja Prabhudessai.
Section 377 of the Indian Penal Code defines unnatural offences as voluntarily having carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Penetration is mandatory to constitute carnal intercourse as mentioned in Section 377.
Besides that, the accused has also been booked under Section 384 (punishment for extortion), Section 420 (cheating) of IPC and Section 8 (punishment for sexual assault) and Section 12 (punishment for sexual harassment) of the Protection of Children against Sexual Offences (POCSO) Act.
“The offence under Sections 8 and 12 (of POCSO) are punishable for maximum imprisonment upto five years. The Applicant is in custody for almost one year. Charge is not yet framed and trial is not likely to commence in the immediate future. Considering the above facts and circumstances, the Applicant is entitled for bail,” the bench observed.
