Kissing, fondling not unnatural offences, says Bombay High Court; grants bail to accused

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The Bombay High Court has observed that kissing on lips and fondling are not unnatural offences under section 377 of the Indian Penal Code, and granted bail to a man accused of sexually assaulting a minor boy.

In a recent order, Justice Anuja Prabhudessai granted bail to the man, arrested last year following a police complaint filed by the 14-year-old boy's father.

As per the FIR, the boy's father found some money missing from their cupboard. The boy told him that he had given the money to the accused person. The minor said he used to visit the accused person's shop at a suburb in Mumbai for recharging an online game, 'Ola Party,' which he used to play.

One day, when he went to get the recharge, the accused kissed him on the lips and touched his private parts, the boy alleged.

Following this, the boy's father approached the police who registered an FIR against the accused under relevant sections of the Prevention of Children from Sexual Offences (POCSO) Act and under Indian Penal Code (IPC) Section 377, which makes carnal intercourse or any other unnatural act as a punishable offence.

Notably, IPC Section 377 carries a maximum punishment of life imprisonment and makes grant of bail difficult.

Justice Prabhudessai, while granting bail to the accused, noted that a medical test conducted on the boy did not support his statement of sexual assault.

She further said the POCSO sections imposed against the accused carried a maximum sentence of five years and entitled him for bail.

In the present case, the element of unnatural sex was not prima facie applicable, Justice Prabhudessai said.

"The statement of the victim as well as the First Information Report (FIR) prima facie indicate that the applicant had touched the private parts of the victim and kissed his lips. In my considered view, this would not prima facie constitute offence under section 377 of the Indian Penal Code," the judge said.

The high court further noted that the accused had already been in custody for a year, and the trial in the case was not likely to begin soon.

"Considering the above facts and circumstances, the applicant is entitled for bail," the HC said, while granting bail to the accused on a personal bond of Rs 30,000.

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