MUMBAI: The Bombay High Court has ruled that groping a minor's breasts over her clothes without direct "skin-to-skin contact" cannot be termed as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
The judgement was passed on January 19 by a single judge bench of the Nagpur bench of the Bombay High Court. Justice Pushpa Ganediwala said that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault and that groping will not fall under the definition of sexual assault.
Justice Ganediwala changed the order of a sessions court which had sentenced the accused, a 39-year-old man called Satish to three years of imprisonment for sexually assaulting a 12-year-old girl.
According to the prosecution and the minor victim's testimony given in court, in December of 2016, the accused had taken the girl to his house in Nagpur under the guise of giving her something to eat. The accused then groped her breast and attempted to remove her clothes.
Justice Ganediwala held that since he groped her without removing her clothes, the offence cannot be termed as sexual assault. The offence accounts for outraging a woman's modesty under Section 354 of the Indian Penal Code.
Sexual assault under the POSCO act entails a minimum imprisonment of three years while section 354 entails a minimum sentence of imprisonment for one-year.
The sessions court had sentenced him to three years of imprisonment for the offences under both the POCSO Act and under IPC section 354.The high court, however, cleared him under the POCSO Act while maintaining his sentence under IPC section 354.
The High Court said, "Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required."
"The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault," it said.
Justice Ganediwala further held that "the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty".
The POCSO Act defines sexual assault as when someone "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 court deemed that the physical contact mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration," the High Court said.
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