New Delhi:
The Supreme Court has place on hold a Bombay High Court order that mentioned the groping of a minor was “not sexual assault since no skin-to-skin contact”. Attorney General KK Venugopal mentioned the order would set a hazardous precedent.
The Bombay High Court gave the controversial order on January 19.
Groping a minor’s breast without the need of “skin to skin contact” can not be termed as sexual assault as defined beneath the Protection of Children from Sexual Offences (POCSO) Act, the High Court mentioned.
Justice Pushpa Ganediwala mentioned there should be “skin to skin contact with sexual intent” for an act to be thought of sexual assault. Mere groping would not be defined as sexual assault, the judge mentioned.
The judge was ruling on the order of a decrease court that had sentenced a 39-year-old man to 3 years in jail for sexually assaulting a 12-year-old girl.
According to the girl’s testimony in court, the accused man had taken the girl to his property in Nagpur in December 2016 on the pretext of providing her anything to consume. He gripped her breast and attempted to get rid of her clothing, Justice Ganediwala recorded in her verdict.
But he “groped her without removing her clothes,” so the offence could not be termed sexual assault but “outraging a woman’s modesty” beneath Section 354 of the Indian Penal Code, the judge mentioned.
While Section 354 carries a minimum sentence of one year jail, sexual assault beneath the stringent POCSO Act suggests at least 3 years in prison.
The accused man was sentenced for each offences, but the High Court freed him of the more extreme charge.
“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,” High Court mentioned.
“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 mentioned.
Justice Ganediwala additional mentioned in her verdict 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 somebody “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, in its verdict, held that this “physical contact” described in the definition of sexual assault should be “skin to skin” or direct physical get in touch with.
“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 mentioned.