Bombay HC's definition of sexual assault
On Sunday, the Bombay High Court gave yet another definition of sexual assault providing a new perspective to this heinous crime. According to the revelation, groping minor's breast without any 'skin to skin' contact doesn't fall under sexual assault as stated by Protection of Children from Sexual Offences (POCSO) Act. The statement by Bombay HC was rolled out on National Girl Child Day, categorising sexual abuse on grounds of physical contact. Soon after the verdict, it received a lot of criticism and outrage on social media. Netizens are angry on the decision which they term as 'major setback in constitutional system'.
The Bombay HC bench, Justice Pushpa Ganediwala of Nagpur in judgement passed on January 19, affirmed that there must be 'skin to skin contact with sexual intent' for an act to qualify as sexual assault. The decision doesn't account for any mental torture, harassment, eve teasing in the law. Defining groping as mere, the verdict said, "mere groping will not fall under sexual assault." Justice Ganediwala modified the judgement of sessions court, which sentenced a 39 year old man of three year imprisonment for sexually assaulting a 12 year old minor girl.
As brought up by prosecution and victim's testimony, the accused Satish took the victim to his house in Nagpur, luring her to offer something to eat. He then grabbed her breast and attempted to disrobe her as recorded in the verdict by the bench. High Court held the view that since he groped her without removing her clothes, it is not an offence of sexual assault rather it is just the offence of violating women's modesty under IPC 354. While POCSO entails a minimum imprisonment of 3 years, section 354 entails imprisonment of one year only.
The accused was sentenced to an imprisonment of 3 years by sessions court for offences under POCSO Act and section 354 but the Bombay HC exonerated him from the charges under POCSO act, upholding the detention under IPC section 354. "For stern conviction of the accused, the court holds the opinion that there should be serious allegations," said the court. It further added, "Without any specific detail available of whether the top was removed or hand was inserted in her clothes etc, we can't term it as sexual assault."
The POCSO act outlines sexual act as "when someone with sexual intent touches vagina, penis, anus or breasts of Child or make the child touch the vagina, penis, anus or breast of such person or any other person or undertake any act with sexual intent which involve physical contact comes under sexual assault". The 'physical contact' mentioned in the above definition must be 'skin to skin'.
The Brief. Sign up to receive the top stories you need to know right now.