Arguing for the appellant, advocate Sabahat Ullah submitted that the statement of the mother was on hearsay because she had not witnessed the incident and also raised doubts about the minor’s account.
Arguing for the appellant, advocate Sabahat Ullah submitted that the statement of the mother was on hearsay because she had not witnessed the incident and also raised doubts about the minor’s account.

Groping without skin contact not sexual assault, rules Bombay High Court

It couldn’t be deemed an offence under the Pocso Act because there had been no skin-to-skin contact with sexual intent, the bench observed in its ruling on January 19. The man allegedly pressed a breast of the minor.
By K A Y Dodhiya
PUBLISHED ON JAN 25, 2021 05:07 AM IST

The Nagpur bench of the Bombay high court has set aside the conviction of a man who was found guilty under the Protection of Children from Sexual Offences Act for groping a 12-year-old girl four years ago, commuting his punishment.

It couldn’t be deemed an offence under the Pocso Act because there had been no skin-to-skin contact with sexual intent, the bench observed in its ruling on January 19. The man allegedly pressed a breast of the minor. “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 court observed.

“In view of the above discussion, this court holds that the appellant is acquitted under Section 8 of the Pocso Act and convicted under minor offence u/s 354 of IPC {Indian Penal Code} and sentenced him to undergo RI (rigorous imprisonment). for one year and to pay fine of 500/-, in default of fine to suffer RI for one month. The sentence for the offence punishable under Section 342 of the IPC i.e. six months and fine of 500/-, in default to suffer RI for one month, is maintained,” noted the bench.

Under the Pocso Act, the man had been sentenced rigorous imprisonment for three years and a fine of 500; in default of which he was to spend one more month in jail. The man was convicted by the extra joint additional sessions judge, Nagpur on February 5, 2020 for the offence punishable under Section 8 of the Pocso Act read with Section 354 of the IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs500/-, in default of fine to suffer rigorous imprisonment for one month. The verdict was pronounced on January 19, 2021.

According to a complaint lodged by the mother of the minor with the Gittikhadan police station, Nagpur on December 14, 2016, her 12-year-old daughter had gone out of the house to get a guava. On the way, the man stopped the daughter and told her that he would give her a guava and took her to his house. In his house, the appellant pressed a breast of the minor and also attempted to remove her salwar. As the minor shouted for help, he ran away.

The mother said she had been informed by a neighbour that the man had taken her daughter to his house. When the mother confronted the man, he denied having seen her daughter, which prompted the mother to search his house, where she found the minor who told her about the incident. She then lodged a police complaint.

Arguing for the appellant, advocate Sabahat Ullah submitted that the statement of the mother was on hearsay because she had not witnessed the incident and also raised doubts about the minor’s account. The bench, however, did not accept the submissions. Additional public prosecutor M J Khan opposed the appeal and said that the offence indeed amounted to a sexual assault. After hearing the submissions, the bench observed that the submissions of the state were not acceptable because the appellant had not removed the top of the minor when he committed the offence.

“On prima facie perusal of the order, I feel that when section 354 of the IPC is applied in the case of a minor, then both section 7 and 8 of the Pocso Act has to be applied as well. The Act has been made with the aim of safeguarding minors against sexual assault and hence the investigators and the lawyers should pay attention to the fact while collecting evidence, arguing or passing orders and ensure that the accused person is not let off easily,” said Pravin Ghuge, former chairman of the state Child Rights Commission,

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