Skin to Skin contact: SC stays Bombay HC order
(Sourced from PTI)
The Supreme Court on Wednesday stayed the Bombay High Court order acquitting a man under the Protection of Children from Sexual Offences (POCSO) Act saying groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault. A bench of Chief Justice SA Bobde, Justices AS Bopanna, and V Ramasubramanian stayed the order after Attorney-General KK Venugopal mentioned the matter.
The top court issued notice to the Maharashtra Government and permitted the AG to file an appeal against the January 19 verdict of the Nagpur bench of the Bombay High Court.
As per the prosecution and the minor victim's testimony in court, in December 2016, Satish, a 39-year-old man had taken the 12-year-old girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he grabbed her breast and attempted to remove her clothes, the HC had recorded in its verdict.
The HC in its verdict said, that groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault as defined under the POCSO Act. However, since he groped her without removing her clothes, the offense cannot be termed as sexual assault and, instead, constitutes the offense of outraging a woman's modesty under IPC Section 354, the HC had held.
The HC had modified the order of a Session's Court, which had sentenced the accused to three years of imprisonment under the POCSO Act for sexually assaulting the girl and under IPC Section 354. The sentences were to run concurrently. The High Court, however, acquitted him under the POCSO Act while upholding his conviction under IPC Section 354.
"Considering the stringent nature of punishment provided under POCSO, stricter proof and serious allegations are required," the HC said. "The act of pressing of the child's breast, in the absence of any specific detail as to whether the top was removed or he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault," it said.
The HC, in its verdict, had held 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 with sexual intent without penetration," the HC said.
The POCSO Act defines sexual assault 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. The definition also includes any other act with sexual intent that involves physical contact without penetration.