Supreme Court puts on hold Bombay High Court order saying minor's groping not sexual assault since no skin-to-skin contact

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Supreme Court today stayed an order by the Bombay High Court.

New Delhi:

The Supreme Court has put on hold a Bombay High Court order that said the groping of a minor was "not sexual assault since no skin-to-skin contact". Attorney General KK Venugopal said the order would set a dangerous precedent.

The Bombay High Court gave the controversial order on January 19.

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, the High Court said.

Justice Pushpa Ganediwala said there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. Mere groping would not be defined as sexual assault, the judge said.

The judge was ruling on the order of a lower court that had sentenced a 39-year-old man to three years in jail for sexually assaulting a 12-year-old girl.

According to the girl's testimony in court, the accused man had taken the girl to his house in Nagpur in December 2016 on the pretext of giving her something to eat. He gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.

But he "groped her without removing her clothes," so the offence could not be termed sexual assault but "outraging a woman's modesty" under Section 354 of the Indian Penal Code, the judge said.

While Section 354 carries a minimum sentence of one year jail, sexual assault under the stringent POCSO Act means at least three years in prison.

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The accused man was sentenced for both offences, but the High Court freed him of the more severe charge.

"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," High Court 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 High Court said.

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