Not sexual assault if there is no 'skin to skin' contact: HC

Groping a minor's breast without''skin to skin contact'' cannot be termed as sexual assault asdefined under the Protection of Children from Sexual Offences(POCSO) Act, the Bombay High Court has said.

Justice Pushpa Ganediwala of the Nagpur bench of theBombay High Court, in a judgement passed on January 19, thedetailed copy of which was made available now, held that theremust be ''skin to skin contact with sexual intent'' for an actto be considered sexual assault.

She said in her verdict that mere groping will notfall under the definition of sexual assault.

Justice Ganediwala modified the order of a sessionscourt, which had sentenced a 39-year-old man to three years ofimprisonment for sexually assaulting a 12-year-old girl.

As per the prosecution and the minor victim'stestimony in court, in December 2016, the accused, one Satish,had taken the girl to his house in Nagpur on the pretext ofgiving her something to eat.

Once there, he gripped her breast and attempted toremove her clothes, Justice Ganediwala recorded in herverdict.

However, since he groped her without removing herclothes, the offence cannot be termed as sexual assault and,instead, constitutes the offence of outraging a woman'smodesty under IPC section 354, the high court held.

While section 354 entails a minimum sentence ofimprisonment for one year, sexual assault under the POCSO Actentails a minimum imprisonment of three years.

The sessions court had sentenced him to three years ofimprisonment for the offences under the POCSO Act and underIPC section 354. The sentences were to run concurrently. Thehigh court, however, acquitted him under the POCSO Act whileupholding his conviction under IPC section 354.

''Considering the stringent nature of punishmentprovided for the offence (under POCSO), in the opinion of thiscourt, stricter proof and serious allegations are required,''HC said.

''The act of pressing of breast of the child aged 12years, in the absence of any specific detail as to whether thetop was removed or whether he inserted his hand inside the topand pressed her breast, would not fall in the definition ofsexual assault,'' it said.

Justice Ganediwala further said in her verdict that''the act of pressing breast can be a criminal force to awoman/ 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 breastof the child or makes the child touch the vagina, penis, anusor breast of such person or any other person, or does anyother act with sexual intent which involves physical contactwithout penetration is said to commit sexual assault''.

The court, in its verdict, held that this ''physicalcontact'' mentioned in the definition of sexual assault must be''skin to skin'' or direct physical contact.

''Admittedly, it is not the case of the prosecutionthat the appellant removed her top and pressed her breast. Assuch, there is no direct physical contact i.e. skin to skinwith sexual intent without penetration,'' the HC said.