The Supreme Court, while quashing the 'skin-to-skin' judgment of the Bombay High Court, said physical contact, if done with sexual intent, would amount to sexual assault within the meaning of Section 7 of the POCSO Act
The HC judge had held that mere groping will not fall under the definition of sexual assault. Representation pic
The Supreme Court on Thursday quashed the controversial skin-to-skin judgement of the Bombay High Court in a case under the POCSO Act, saying the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child. The high court had held that no offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act is made out if there is no direct skin-to-skin contact between an accused and victim. The top court, which was hearing separate appeals of Attorney General (AG) and the National Commission for women (NCW), had stayed the HC order acquitting the assaulter on January 27.
Justice Pushpa Ganediwala
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A bench headed by Justice U U Lalit set aside the HC judgment, and said the act of touching the sexual part of the body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the POCSO Act. Purpose of the law can’t be to allow the offender to sneak out of the meshes of the law, it said. “We have held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that courts can’t be overzealous in searching ambiguity,” the bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, said.
Justice Bhat delivered a separate concurring judgment. “The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child.” Attorney General K K Venugopal had earlier told the SC that the controversial HC verdict would set a “dangerous and outrageous precedent” and needed to be reversed.
An SC bench headed by Justice U U Lalit
The SC, which was hearing separate appeals of the AG and the NCW, had on January 27 stayed the HC order acquitting a man under the POCSO Act saying groping a minor’s breast without skin-to-skin contact can’t be termed as sexual assault . Justice Pushpa Ganediwala of the Bombay High Court (Nagpur Bench).had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of jail for sexually assaulting a 12-year-old girl.
What the HC verdict said
The 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. In December 2016, accused Satish had taken the girl to his house in Nagpur on the pretext of giving her something to eat, and there, he groped her breast and tried to remove her clothes, the HC had recorded in the verdict. However, since he groped her without removing her clothes, the offence can’t be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354, it had held. The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently. The HC, however, acquitted him under the POCSO Act while upholding his conviction under IPC Section 354.
Sex assault definition in POCSO Act
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 had held that this “physical contact” mentioned in the definition of sexual assault must be skin-to-skin or direct physical contact.
12 yrs
Age of the child at the time of the assault back in the year 2016
Jan 19
Day the Bombay High Court passed the order acquitting the convict
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