A Nagpur court judge Justice Pushpa Ganediwala became headlines.
According to the Nagpur Court judge, if there is no skin to skin contact, it is not a sexual assault.
Hearing a petition filed against the conviction of a 38 year old in a sexual assault case, Ms. Ganediwala said, “Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” HC said.
The single bench judge said, “The act of pressing of breast of the 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 the top and pressed her breast, would not fall in the definition of sexual assault.”
As per the court, a sexual assault with a minor under the Protection of Children from Sexual Offences (POCSO) Act is not mere groping of breasts without skin to skin contact.
The incident happened in 2016, when a 39 year old man identified as Satish took a 12 year old girl to his house in Nagpur. There he gripped her breast and tried to undress her.
However, since he groped her without removing her clothes, as per the Court, the offence was not a sexual assault but outraging a woman’s modesty under the Sectoion 354 of the Indian Penal Code (IPC.) The case became a criminal offence instead of an offence under POCSO Act.
While section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
In 2016, the man was convicted 3 years imprisonment under the POCSO Act.
However, the man moved the High Court challenging his conviction.
Then, the Nagpur High Court rectified the conviction of the accused.
The Court, in its verdict, said, “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 then considered whether pressing the breasts of a child without removing the top falls into the category of sexual assault defined under Section 7 of the POCSO Act. Under section 7 of the POCSO Act, sexual assault is defined as an act of touching the private parts of the child or making the child touch the private parts of the accused or any other person or any act with sexual intent that involves physical contact without penetration.
Therefore, the court acquitted the convict under POCSO and accused him under a criminal force with the intention to outrage a woman’s modesty defined under Section 354 of the Indian Penal Code.
