HC order on ‘skin contact’ in sexual abuse to face test
- The HC stated that section 8 of the Pocso Act, which penalizes physical contact with sexual intent without penetration, did not apply here as the minor was still wearing her clothes when the accused groped her.
The National Commission for Women (NCW) on Monday said that they would challenge the recent ruling of the Bombay high court that acquitted a man of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act because of the absence of “skin-to-skin” contact with the minor victim, even as the National Commission for Protection of Child Rights (NCPCR) took suo moto cognizance of the case and urged the Maharashtra government to seek a review of the judgment.
In a letter addressed to Maharashtra chief secretary on Monday, NCPCR chairperson Priyank Kanoongo asked the state “to take appropriate steps” over the January 19 verdict of justice Pushpa Ganediwala of the Nagpur bench of the Bombay HC which reversed an earlier conviction of a 39-year-old Nagpur resident who pressed the breast of a 12-year-old girl.
The HC stated that section 8 of the Pocso Act, which penalizes physical contact with sexual intent without penetration, did not apply here as the minor was still wearing her clothes when the accused groped her, and the section required “strict proof and serious allegations”.
“The remark “skin-to-skin... with sexual intention, without penetration” also needs to be reviewed and the State should take note of this, as it seems to be derogatory to the minor victim,” the NCPCR letter stated.
Taking exception to the HC’s interpretation, NCW tweeted: “The judgment will not only have cascading effect on various provisions involving safety and security of women in general but also put all the women under ridicule and has trivialized the legal provisions provided by the legislature for the safety and security of women.”
Reversing a lower court’s order, the Bombay HC had observed, “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,” adding that the nature of punishment called for stricter proof.
On February 5, 2020, an extra joint additional sessions judge, Nagpur found the man guilty under Pocso and the IPC sentencing him to rigorous imprisonment (RI) for three years.
The HC reduced the man’s sentence to a year’s RI under section 354 IPC which pertains to outraging a woman’s modesty, while it upheld the previous conviction of wrongful confinement under section 342 of the IPC, which carried a sentence of six months in prison.
“It has been observed by the Commission that the prosecution has failed in representing case of the victim properly,” the NCPCR chairperson wrote. “If the prosecution had made the submissions as per spirit of the Pocso Act, the accused would not have been acquitted of the serious offence against the minor,” the letter stated.
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 the fruit and took her to his house. In his house, the appellant pressed a breast of the minor and also attempted to remove her salwar.
When she confronted him, he denied all wrong doing. The mother then proceeded to search his house and found her daughter locked in a room in a top floor. Upon release, the girl told her parent about what happened, following which a complaint was lodged.
Responding to the NCPCR letter, state women and child welfare minister Yashomati Thakur said, “We will discuss it within the department after seeking opinion of the law and judiciary department.”