The Bombay High Court in a recent verdict has ruled that groping without skin-to-skin contact is not sexual assault. The Nagpur Bench of the Court said that the act involving a minor would not amount to sexual assault if the accused did not remove the top of the minor or slide his hands under her garment.
The Judge said, “Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required.”
“The act of pressing the breast of a 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 her top and pressed her breast, would not fall under the definition of ‘sexual assault’,” Justice Ganediwala observed, before adding, “it would certainly fall within the definition of section 354 of the IPC, which penalises outraging the modesty of a woman.”
The case pertained to an matter from 2016 where the appellant in the current case was accused of taking the minor victim, aged around 12 years, to his house under the pretext of giving her guava and then proceeded to press her breast and attempted to remove her salwar. Her mother, fortunately, reached the spot right then and rescued her daughter.
The Bombay High Court verdict noted that according to the mother, she was told by her neighbour that the accused took her daughter to his house. However, when she asked him about the whereabouts of her daughter, he denied that she was at his house.
“PW-1 (mother) searched for her daughter on the ground floor and then she went up to first floor. The room was bolted from outside. She opened it and found her daughter. Her daughter was crying. She took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside,” the verdict said.
Following the incident, an FIR was registered against the appellant (accused) under Sections 354, 363 and 342 of the IPC and under Section 8 of the POCSO Act. The Special Court in Nagpur, after a charge-sheet was filed by the Police, framed charges against the accused under Sections 361, 354, 342 and 309 of the IPC and under Section 8 of the POCSO Act. The accused was ultimately convicted of the charges against him but was acquitted of the section 309 (suicide) charge against him.
The victim confirmed the series of events. In light of the facts on hand, the Bombay High Court held that “the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month. The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs.500/-, in default to suffer R.I. for one month, is maintained.”