Skin to Skin contact: SC appoints amicus on plea against Bom HC order acquitting man under POCSO

Considering the gravity of controversy surrounding the Bombay High Court verdict holding that “groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault', the Supreme Court Friday appointed an amicus curiae to assist in the case in which a man was acquitted under the provision of Protection of Children from Sexual Offences (POCSO) Act.

New Delhi: Considering the gravity of controversy surrounding the Bombay High Court verdict holding that “groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault', the Supreme Court Friday appointed an amicus curiae to assist in the case in which a man was acquitted under the provision of Protection of Children from Sexual Offences (POCSO) Act. The top court on January 27 had stayed the operation of the January 19 verdict of the Nagpur bench of the Bombay High Court after Attorney General had mentioned it and was allowed to file an appeal.

A bench of Justices U U Lalit and Ajay Rastogi said that in this case, it needs to appoint amicus curiae looking at the gravity of the controversy as this is a case where the accused cannot go unrepresented. The bench said it will list the matter for disposal on August 24 as the first item on the board for the day.

“We request senior advocate Siddharth Dave to assist the court as amicus curiae. The registry is directed to send papers of the case to Dave immediately,” the bench said in its order. The top court, which on January 27 stayed the high court’s verdict after Attorney General K K Venugopal mentioned the matter, had also issued notice to the Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of the High Court. “In view of what is stated, we permit the learned Attorney General to file an appropriate petition against the said judgment. In the meantime, we stay the acquittal of the accused in Criminal Appeal...in respect of the offense under section 8 of the POCSO Act. Issue notice to the accused and the State of Maharashtra returnable in two weeks,” the bench had said in its order. Venugopal while mentioning the matter before the top court had submitted that the judgment of the high court is “unprecedented” and is likely to set a “dangerous precedent”.

The high court verdict had said that groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault as defined under the POCSO Act. It had said that since the man groped the child without removing her clothes the offense cannot be termed as sexual assault but it does constitute the offense of outraging a woman's modesty under IPC section 354. The high court had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl. Several pleas have been filed in the matter challenging the verdict and similar judgments including by a lawyers’ body the ‘Youth Bar Association of India’.

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The verdict further held that mere groping will not fall under the definition of sexual assault. 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 groped her breast and attempted to remove her clothes, the high court had recorded in her verdict. However, since he groped her without removing her clothes, the offense cannot be termed as sexual assault and, instead, constitutes the offense of outraging a woman's modesty under IPC section 354, the high court had held. While IPC section 354 entails minimum imprisonment for one year, sexual assault under the POCSO Act entails minimum imprisonment of three years. The sessions court had sentenced the man to three years of imprisonment for the offenses under the POCSO Act as also under IPC section 354. The sentences were to run concurrently.

The high court, however, had acquitted him under the POCSO Act while upholding his conviction under IPC section 354. 'Considering the stringent nature of punishment provided for the offense (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,' the high court had said. '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 had said. It had further said that 'the act of pressing breast can be a criminal force to a woman/ 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 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, had 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,' the High Court had said.

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PTI