New Delhi: A day after 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, a huge controversy has sparked on social media regarding the judgement.Also Read - 5 Feet Long Snake Found in Bombay High Court Judge's Chamber, Rescued
The judgement was passed by Justice Pushpa Ganediwala of the Nagpur bench of the high court on January 19, which states that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault. Also Read - Is BMC Planning To Impose More Curbs in Mumbai? Here's What Civic Body Told Bombay HC
Justice Ganediwala modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl. As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Also Read - Proxy Advisory Firm InGovern Advises Investors To Support Dish TV 30 Dec 2021 AGM Proposals
Once there, he gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the high court held. While section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act 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 for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” HC said.
“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 said.
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”.
The POCSO Act defines sexual assault 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, 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 i.e. skin to skin with sexual intent without penetration,” the HC said.
Following the verdict, angry netizens started slamming the court for the judgement as some were even shocked to hear the judgement from a female judge. A Twitter user even wrote, ” I was whimsically thinking that women judges will be sensible and less prejudiced.”
Earlier today, the apex child rights body in the country, NCPCR, asked the Maharashtra government on Monday to file an urgent appeal against a recent Bombay High Court judgment that said an act cannot be termed as sexual assault if there is no “skin-to-skin” contact. In a letter to the Maharashtra chief secretary, National Commission for Protection of Child Rights (NCPCR) Chairperson Priyank Kanoongo said the words “skin-to-skin with sexual intention without penetration” in the judgment also need to be reviewed and the state should take note of this as it seems to be derogatory to the minor victim in the case.
Here’s how Twitterati reacted over the Bombay High Court’s judgement: