Sexual assault not applicable as accused groped breasts of child over dress: Bombay High Court

The Nagpur bench of the Bombay HC, Justice Pushpa Ganediwala, noted that while IPC 354 was applicable, sexual assault as per POCSO was not possible; activists called the interpretation bizarre
Sexual assault not applicable as accused groped breasts of child over dress: Bombay High Court

As sexual assault against children has been on the rise in India for a while, activists and legal observers have been advocating for stringent punishments and better, foolproof legal measures. Meanwhile, the Nagpur bench of the Bombay High Court has made some incredible interpretation on the matter recently.

The event for the case happened in December 2016, when a man took a minor girl to his home by offering her guava. Once there, he groped her breasts, attempted to remove her salwar, while she tried to escape and screamed for her mother. Soon after, the mother arrived at the place, rescued her child, and filed a case. The police immediately took him in and a lower court handled the case. The prosecution examined the mother, the survivor, a neighbour and two police officers.

After examining the evidence, the court found him guilty on four charges — wrongful restraint (IPC 342), kidnapping (IPC 363), outraging a woman’s modesty (IPC 354), and section 8 (sexual assault) of the POCSO Act. However, the accused filed an appeal in the High Court, who noted that sexual assault was not possible, thereby acquitting him of charges based on section 8 and reducing his sentence from three to one year. This has grabbed the attention of activists from across the nation. Here is a rundown of the Court’s reasoning.

To amount to sexual assault not amounting to penetration, as per the relevant section of POCSO (Protection of Children from Sexual Offences Act), there has to be physical contact. Interestingly, Justice Pushpa Ganediwala, who was overseeing the case, interpreted ‘physical contact’ to mean ‘skin-to-skin’ contact. “Admittedly, it is not the case of the prosecution that the appellant 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,” he noted.

The police and the prosecution had argued that the accused had groped the girl’s breasts over her dress, but also added that the man had done so over the salwar and that the girl’s mother had saved her before he could remove the dress. The judge took this argument to reinterpret the matter, adding that sexual assault couldn’t stand but IPC 354 will. Section 8 of POCSO refers to the punishment of the crime as described in section 7. The latter says, “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 Court thus observed that it was not the case of the prosecution that the appellant removed her top and pressed her breast. “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

The judge added that it would certainly fall within the definition of section 354 of IPC, which says, “Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”

This has sparked a widespread debate on social media, while many add that such an interpretation will set a new precedence in sexual assault cases, especially those pertaining to POCSO. Moreover, legal experts also add that such an interpretation doesn’t stand true to the definition written in the Act, as it only mentions “physical contact” and not “skin-to-skin” and if all physical contact is to be interpreted as skin-to-skin, then it would lead to a very confusing scenario.

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