SC reserves verdict on appeals against skin-to-skin judgement of Bombay HC

PTI, Sep 30, 2021, 4:14 PM IST

New Delhi: The Supreme Court Thursday reserved judgement on appeals against the Bombay High Court verdict which had held that no offence of sexual assault under the POCSO Act is made out if there is no direct “skin-to-skin” contact between accused and the victim.

A bench headed by Justice U U Lalit heard the arguments of the counsels for the parties and asked them to file written submissions.

“Parties at liberty to file their written submissions within three days. Order reserved,” said the bench also comprising Justices S Ravindra Bhat and Bela M Trivedi.

The Maharashtra government had told the top court that they would adopt the submissions of Attorney General K K Venugopal.

Venugopal had earlier told the apex court that the controversial verdict of the Bombay High Court would set a “dangerous and outrageous precedent” and needed to be reversed.

The top court, which was hearing separate appeals of Attorney General and the National Commission for women (NCW), had on January 27 stayed the order which had acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act saying “groping a minor’s breast without ”skin to skin contact” cannot be termed as sexual assault”.

Two judgments were passed by Justice Pushpa Ganediwala of Bombay High Court (Nagpur Bench).

Earlier, while staying the judgements, the top court had also issued notice to Maharashtra government and permitted the AG to file an appeal against the verdict.

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.

It had said that since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence 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.

The verdict had 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 gripped 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 offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the high court 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 high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.

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.