'Dangerous precedent': A-G urges SC to reverse Bombay HC's 'skin-to-skin contact' verdict

In a significant development, on August 24, Attorney General KK Venugopal urged the Supreme Court to reverse the Bombay High Court verdict which held that no offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, is said to be committed if there is no direct "skin-to-skin" contact between the accused and the child victim. A-G Venugopal argued that the judgement pronounced by Justice Pushpa Ganediwala was "outrageous".

The Bombay HC verdict was criticised for ruling that holding the hands of a five-year-old girl and unzipping the trousers do not amount to "sexual assault" under statutory provisions. 

Attorney General urges Top Court to reverse 'skin-to-skin contact' POCSO judgement

The country's top law officer stated that going by the approach of the Bombay HC, anybody can get away with a sexual assault offence by wearing surgical gloves. The Apex Court, which was hearing the distinct appeals of the A-G and the National Commission for Women (NCW), had stayed the Bombay HC verdict which acquitted a man under the POCSO Act saying "groping a minor's breast without 'skin to skin' contact cannot be termed as sexual assault". The verdict was criticised by legal experts and child rights activists.

While arguing before a bench of Justices UU Lalit and Ajay Rastogi, the A-G contended that "touching of breast of a minor even without removing the top amounted to commission of the offence of sexual assault under the Act." 

"Suppose, tomorrow a person, wearing surgical gloves, touches the entire body of a minor, then he would not be punished for sexual assault as per this judgement. This is outrageous. Saying that skin-to-skin contact is required would mean a person, wearing gloves, getting an acquittal. The High Court did not see the far-reaching consequences", he said.

”The judgement is outrageous and would set a dangerous precedent," he added.

Acquitted person guilty of charges under POCSO & Section 354 of IPC: Attorney General

A-G Venugopal referred to the definition of sexual assault under Section 7 of the POCSO Act and highlighted the provisions for a jail term of three years. Additionally, he said that the case in hand was akin to the offence of outraging the modesty of a woman under Section 354A of the IPC. 

Section 7 of POCSO states - "Whoever with sexual intent touches the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

While Section 354A of IPC states - "Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine."

While referring to the facts of the case as well the A-G said the minor was stalked and groped by the accused, following which she raised an alarm at the peak of her voice. An FIR was lodged soon after the incident. Venugopal added that letting go of an accused, who had also attempted to pull down the 'salwar' (pants) of the minor, will be against and violative of the POCSO Act. 

Meanwhile, the NCW concurred with A-G's views and because no one appeared on behalf of the accused, the Bench directed the Supreme Court Legal Services Committee (SCLSC) "to make available the services of senior advocate or advocates along with the Advocate-on-Record (AoR) to appear on behalf of the accused", following which the matter will be taken up again on September 14.

“We have already appointed Senior Advocate Siddharth Dave as an amicus curiae. Let the paper be submitted to the SCLSC today. List all the matters for disposal on September 14,” it said.

Bombay HC's controversial 'skin-to-skin' sexual assault judgement 

Justice Pushpa Ganediwala of the Bombay HC (Nagpur Bench) had delivered two controversial judgements in sexual assault cases including the one which has come to be known as the 'skin-to-skin' contact verdict. 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 had also said that since the man groped the child without scrapping her clothes, the act did not amount to a legal offence under the POCSO but it did constitute the offence of outraging a woman's modesty under IPC Section 354.

The Bombay HC modified the order of a sessions court that had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting the 12-year-old girl. As per inputs of the prosecution and the minor victim's testimony in court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat. He allegedly then groped her breast and attempted to remove her clothes. However, since he groped her without removing her apparels, the HC did not term the act as sexual assault, instead, it termed it as an offence of outraging woman's modesty under IPC.

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.

"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," the High Court had 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," it 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," it had said.