SC Stays Bombay HC Judgment Which Held 'Skin To Skin' Contact Necessary For 'Sexual Assault'

NEW DELHI: The Apex Court on January 27 stayed the controversial judgement from the Bombay High Court order which acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act.

Notably, the Bombay High Court in its judgement said that "groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault".

A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian stayed the high court order after Attorney General K K Venugopal moved the Supreme Court challenging the Bombay High Court verdict and termed the judgement would set a "dangerous precedent".

Earlier, 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 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 a 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.

Also Watch: Delhi Under Seige, Farmers Storm Red Fort, Hoist Tri-Colour