“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 Sikkim High Court has held that an act of forcibly kissing a girl child of 11 years of age and hugging her can amount to "aggravated sexual assault" as defined in Section 9(m) of the Protection of Children from Sexual Offences Act, 2012

The High Court upheld the Special Court order convicting the accused under Section 9(m) of the POCSO Act, for having forcibly kissed and hugged a girl child of 11 years of age. The special court had taken into account narration of facts deposed by the minor victim which was also corroborated by her school mates present at the time of the incident and some just before and after the incident.

The issue considered by the court was whether forcibly kissing the minor victim a girl child of 11 years of age and hugging her amounts to "aggravated sexual assault" as defined in Section 9(m) of the POCSO Act, 2012. Upholding the Special court view, the court said:

"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."

The court then upheld the sentence of five years imprisonment imposed by the Special Court on the accused.