SC stays Bombay HC order acquitting man under POCSO citing no 'skin-to-skin' contact

The Supreme Court on Wednesday stayed the Bombay  High Court order which acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act citing that an act that does not constitute "skin to skin contact" can not be termed as sexual assault.

A bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian stayed the high court order.

SC also issued a notice to the Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of the Nagpur bench of the Bombay High Court. 

The bench also issued notice to the accused in the case, seeking his response in two weeks.   

Earlier,  Bombay High Court acquitted an appellant under the POCSO Act ruling that groping a minor's breast without "skin to skin contact" does not constitute "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act.

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, the detailed copy of which was made available now, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault.

The Nagpur Bench of Bombay High Court passed the order while hearing a petition by Satish, who was convicted by a local court under Sections 354, 363 (kidnapping) and 342 (wrongful restraint) of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

As per the prosecution and the minor victim's testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he pressed her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.

However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault, the high court held. It, therefore, convicted the man under Section 354 of IPC (outraging a woman's modesty) and sentenced him to undergo rigorous imprisonment for one year.

Sexual assault under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman's modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.

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 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," read the court order.