Groping without ‘skin to skin contact’ not sexual abuse under POCSO: HC

The court gave the judgment in a 2016 case of a minor who had alleged her 39-year-old neighbour had pressed her breast and tried to undress her after luring her to his house

Advocate Jaishri Patil urged the Bombay High Court to direct the police to take note of a complaint filed by her with the Malabar Hill Police station and register an FIR.

In a bizarre judgment that has invited criticism from child rights activists, the Nagpur bench of Bombay High Court recently ruled that groping a minor without “skin to skin contact” will not qualify as sexual assault under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act.

A single-judge bench of Justice Pushpa Ganediwala pronounced the order on January 19 in a case where a 12-year-old girl had alleged of being groped by a 39-year-old man in 2016.

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The victim’s mother who had filed the complaint, had said that their neighbour Satish had lured the girl to his house on the pretext of giving her a guava, but once she was inside the house, he had pressed her breast and tried to undress her. When the girl shouted out for help, the accused fled the room, bolting it from outside. The girl’s mother had come to her rescue after hearing her shrieks.

The accused was arrested and convicted by a special sessions court under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 363 (punishment and kidnapping) and 342 (punishment and wrongful confinement) of the IPC and under section 8 of the POCSO Act. The sessions court had sentenced the accused to three years of imprisonment for the assault.

Overturning the judgment, the high court said that as the accused had groped the girl without removing her clothes, the offence cannot be categorized as sexual assault and instead falls under outraging a woman’s modesty under IPC section 354.

While sexual assault under POCSO comes with a minimum punishment of three years in jail, the same under section 354 of IPC entails a minimum sentence of one year.

“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,” the high court said.

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“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,” Justice Ganediwala said.

Under POCSO, sexual assault occurs 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”.

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