GROPING WITHOUT ‘SKIN TO SKIN CONTACT’ – NOT A SEXUAL ASSAULT; SAYS BOMBAY HIGH COURT

The Bombay High Court is under negative spotlight recently following a verdict passed on a POCSO case. In the detailed copy of the judgement which has been made available lately, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court has said that ‘skin to skin contact with sexual intent without penetration is necessary for the act to be considered as a sexual assault’. The ruling also said that ‘mere groping’ will not fall under sexual assault.

A complaint regarding the pursuant events was filed by the victim’s mother on 14th December 2016 at Gittikhadan Police Station in Nagpur. The complaint registered at the station is that “on the pretext of giving her [the minor] a guava in his house, Satish Ragde pressed her breast and attempted to remove her salwar.” The girl was found crying while the mother rescued her. She complained that the man attempted to silence her when she started to cry while disrobing.

The accused was charged with Sections 354 (assault or criminal force to woman with intent to outrage her modesty); 363 (punishment for kidnapping); 342 (punishment for wrongful confinement) of the IPC; and Section 8 (punishment for sexual assault) of the Protection of Children from Sexual Offences Act (POCSO) by the police in the FIR. During the hearing, the special court added Section 361 (kidnapping from lawful guardianship) to the aforementioned charges. The accused was found guilty by the special court and was sentenced for 3 years of imprisonment with a fine of Rs.1500 in total. 

In pursuit of the appeal filed by Ragde at the High Court of Bombay, challenging the verdict passed by the special court, Justice Pushpa Ganediwala has acquitted him of Section 8 of the POCSO charges. The Court convicted him for minor charges of IPC, thereby cutting down his three years of imprisonment to one year. 

According to Section 8 of POSCO, ‘Whoever, 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 High Court ruled out the POSCO charges by saying, “Considering the stringent nature of punishment provided for the offence, in the opinion of the court, stricter proof and serious allegations are required. The act of pressing of the 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.”

This shocking verdict on sexual assault towards women and children has led to outrage across the country. The judicial system is turning a blind eye against its paramount concern of protecting its citizens through this judgement.