Mumbai: There must be physical contact -- 'skin-to-skin contact with sexual intent' -- and mere groping would not amount to sexual assault, ruled the Nagpur bench of the Bombay High Court recently. The HC opined that touching a minor's chest would not amount to sexual assault unless the accused removed the top worn by the girl or slid his hand within her garment.
This was the ruling pronounced by a single-judge bench of Justice Pushpa Ganediwala while modifying the conviction of a man, who was sentenced to jail for sexually assaulting a minor girl.
The judge noted that sexual assault under POCSO is defined as an offence, wherein the act must have been committed with sexual intent and involved touching the private parts of the child or making the child touch the private organs of the accused. The court further noted that sexual act, as per the provisions of POCSO, involves committing any other act with sexual intent which involves physical contact without penetration.
"Admittedly, it is not the case of the prosecution that the accused 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," Justice Ganediwala held.
Considering the 'stringent' nature of punishment provided for offence of ‘sexual assault’ i.e. a minimum of three years and maximum five years of prison, the judge said that "stricter proof and serious allegations are required".
"The act of pressing the breast of a 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 her top and pressed her breast, would not fall under the definition of ‘sexual assault'," the judge held, adding, "it would certainly fall within the definition of section 354 of the IPC, which penalises outraging the modesty of a woman."
The court said that the act could be one of criminal force to a woman or a girl with the intention to outrage her modesty, for which minimum and maximum punishment is one and five years, respectively.
"In the instant case, having regard to the nature of the alleged act by the accused and having regard to the circumstances, in the opinion of this court, the alleged act fit into the definition of the offence as defined in section 354 of IPC," Justice Ganediwala held.
The judge was seized with a criminal appeal filed by a man, who was convicted for sexually assaulting a minor girl by pressing her chest and partially stripping her.
The man, as per the prosecution case, had taken the victim to his house under the garb of offering her a guava. However, when her mother reached the house of the accused, she found her daughter crying. The girl then told her mother what had happened and subsequently an FIR was lodged.
