The Bombay High Court, modifying a sessions court order that held a man guilty of a minor's sexual assault, ruled that groping a child without "skin-to-skin contact with sexual intent" does not amount to the offence under the Prevention of Children from Sexual Offences (POCSO) Act. The judgement was passed on January 19, the detailed copy of which was made available now.
Justice Pushpa Ganediwala, hearing the case for the Nagpur Bench of the court, held that act of groping the 12-year-old girl's chest and attempting to strip her would amount to molestation under Section 354 of the IPC (outraging a woman's modesty). The revised sentence punished the accused with one year's imprisonment for the less graver offence.
"In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month," the judgement said.
The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and under IPC section 354. The sentences were to run concurrently.
"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.
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 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 noted.
Justice Ganediwala said that "stricter proof and serious allegations" were required to punish the man for "sexual assault" for a minimum of three and maximum of five years in prison. "The act of pressing of breasts 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 top and pressed her breast, would not fall in the definition of 'sexual assault.'"
The prosecution said that the man took the victim to his house by offering her a guava where the incident took place. The girl, crying, complained to her mother and an FIR was subsequently filed.