In a shocking judgment, the Bombay High Court has said that groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
According to the reports, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19 mentioned that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault under the POCSO act.
She mentioned that just mere groping will not fall under the term of sexual assault as defined under POCSO Act.
The judge modified the order of sessions court that sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
As per the minor victim’s testimony, the accused had taken the minor victim to his house in Nagpur on the pretext of giving her something to eat. Justice Ganediwala mentioned in her verdict that the accused gripped her breast and attempted to remove her clothes. This horrific incident happened in December 2016.
As per the High Court, Because he groped the teenage girl without removing her clothes, the offense couldn’t be termed as sexual assault. Instead, constitutes the offense of outraging a woman’s modesty under IPC section 354.
Though sexual assault under the POCSO Act entails minimum imprisonment of three years, section 354 entails a minimum sentence of imprisonment for one year.
The session court sentenced him to three years of imprisonment under POCSO act and under IPC section 354. The sentences were to run concurrently. However, the court has now acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
While sharing the details of the judgment, 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,”
Justice Ganediwala further said 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”.
As per the POCSO Act, sexual assault is defined 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, in its verdict, focused on the fact that this “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,”
This judgment has disappointed many parents and individuals, who wanted a safer society for kids. The furious and disappointed people took to social media to share their anger.
Aghast to read Nagpur bench of HC verdict where the judge acquitted a 38-year-old man for sexual assault on a 12 year old girl.Says no skin to skin contact established hence a minor offence. What a shame if we normalise this sick,pathetic, immoral act with negligible consequences
This is truly appalling. What sort of judiciary we have? Tomorrow with Condoms you would acquit a raper. Are we really out of our minds. Shocking HC & SC judges are there to give justice & not read laws.Totally disgusting. Hon’ble SC should call for suomoto rehearing of the case.
At IFORHER, we are highly disappointed in this judgment. With such judgments, how could we promise our little kids and young daughters a safer country to live in? Even though we as a country are ready to celebrate 72nd Republic Day, still our women and daughters couldn’t walk freely in free India. In such an unsafe environment, judgments like this are only a sign of our failure!