In a bizarre observation, Nagpur bench of the Bombay High Court has ruled out that mere groping will not be considered as sexual assault, there must be physical contact - ‘skin to skin contact with sexual intent’.
The HC remarked that touching a minors chest would not be counted as sexual assault unless the accused removes the garment worn by the girl or puts his hand inside her garment.
Justice Pushpa Ganediwala modified the conviction of a man, 39, who was sentenced to jail for 3 years 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. He gripped her breast and tried removing her clothes, Justice Ganediwala recorded in her verdict.
It was noted that under the POCSO act, sexual assault is an offence, however, it must be committed with sexual intent.
The judge opined that to term it as a crime the accused should get involved in touching the private parts of the child or make the child touch the private organs of the accused.
“Considering the stringent nature of punishment provided for the offence of sexual assault, a stricter proof and serious allegations are required", said the judge.
"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.
"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 added.
Justice Ganediwala further noted that “the act of pressing breast could be one of criminal force to a woman or a girl to outrage her modesty,” for which minimum and the maximum punishment is one and five years, respectively.
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".
"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 fits into the definition of the offence as defined in section 354 of IPC," Justice Ganediwala held.