The Bombay High Court had held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
The Supreme Court on Thursday set aside the Bombay High Court that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
A bench headed by Justice U U Lalit set aside the high court judgement, and said the most important ingredient of constituting sexual assault is sexual intent and not skin-to-skin with the child. Purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.
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“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, said.
The top court, which was hearing separate appeals of Attorney General and the National Commission for women (NCW), had on January 27 stayed the order which had acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act saying groping a minor’s breast without ‘skin to skin contact’ cannot be termed as sexual assault .
The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently. The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
The case dates back to December 2016, when the 39-year-old accused had lured the 12-year-old girl to his house on the pretext of giving her something to eat. According to the complaint lodged by the girl’s mother, the man pressed the girl’s breast and attempted to remove her salwar. The mother found the girl in the man’s house.
The HC said that groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault, as defined under the POCSO Act. It said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354.