The Supreme Court has placed on maintain 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 harmful precedent.
The Bombay High Court gave the controversial order on January 19.
Groping a minor’s breast with out “skin to skin contact” can’t be termed as sexual assault as outlined beneath the Protection of Children from Sexual Offences (POCSO) Act, the High Court mentioned.
Justice Pushpa Ganediwala mentioned there have to be “skin to skin contact with sexual intent” for an act to be thought-about sexual assault. Mere groping wouldn’t be outlined as sexual assault, the decide mentioned.
The decide was ruling on the order of a decrease court docket that had sentenced a 39-year-old man to a few years in jail for sexually assaulting a 12-year-old woman.
According to the woman’s testimony in court docket, the accused man had taken the woman to his home in Nagpur in December 2016 on the pretext of giving her one thing to eat. He gripped her breast and tried to take away her garments, Justice Ganediwala recorded in her verdict.
But he “groped her without removing her clothes,” so the offence couldn’t be termed sexual assault however “outraging a woman’s modesty” beneath Section 354 of the Indian Penal Code, the decide mentioned.
While Section 354 carries a minimal sentence of 1 yr jail, sexual assault beneath the stringent POCSO Act means at the very least three years in jail.
The accused man was sentenced for each offences, however the High Court freed him of the extra extreme cost.
“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 docket, in its verdict, held that this “physical contact” talked about within the definition of sexual assault have to be “skin to skin” or direct bodily 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 mentioned.