Sexual assault on skin to skin contact

Bombay High Court – No Sexual Assault in case of no ‘Skin to Skin Contact’

In the case of Satish Ragde vs state of Maharashtra, an appeal decided before the Nagpur Bench of the Bombay High Court on 19th January 2020, it was held that touching a child’s breasts while she was clothed would not amount of sexual assault under the POCSO – Prevention of Children from Sexual Offences Act, 2013. It held that because the accused did not remove the survivors’ clothes, and there was no ‘skin to skin contact’, the act of simply pressing his hands against her breasts isn’t grave enough to make out an offence of sexual assault under the POCSO Act. Therefore, the act of groping without direct contact was held to not be sexual assault according to this Court

As per the lower court judgment, the accused was convicted for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code (Outraging the modesty of a woman, Kidnapping and wrongful confinement respectively) and Section 7 & 8 (Sexual assault) of the Protection of Children from Sexual Offences Act, 2012.

The facts of the case are that the accused took the prosecutrix aged about 12 years, on the pretext of giving her a guava, in his house and pressed her breast and attempted to remove her salwar. He tried to remove her knicker so she shouted. The appellant pressed her mouth by his hand. Thereafter he went out, after bolting the room from outside. At that point of time, the informant (survivor’s mother) reached the spot and rescued her daughter.

As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. The act must involve touching the vagina, penis, anus, or breast of the child or doing any other act with sexual intent which involves physical contact without penetration.

The Court held that stricter proof and serious allegations are required. 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’. The accused was acquitted of charges under the POCSO Act by the High Court.

The Court retained the charge of section 354 of IPC which deals with outraging the modesty of a woman. Outraging the modesty of a woman has been previously held to cover a wide range of acts which shocks the sense of common decency of a woman as ‘modesty’ is said to be the very essence of ‘being a female’. That a female, by her very sex (assigned at birth) is born with a sense of modesty and Courts have time and again decided if the accused’s actions meet the threshold of shocking common decency of women in general.

The Bench has acquitted the accused of the offence under POCSO therefore, the accused’s punishment now stands at a year along with a fine, instead of a 3-year punishment under the POCSO Act.

The Supreme Court has passed an ordered a stay on the acquittal of this accused under the POCSO Act as they believe it will set a dangerous precedent. the AG KK Venugopal mentioned the matter before CJI SA Bobde. The court has further permitted the AG to file a plea against the Bombay HC order.

The Judge who passed this order was recommended to be made a permanent judge of the Bombay HC. However, after giving another judgement of a similar nature recently, the collegium withdrew their recommendation.

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