The Nagpur Bench of Bombay High Court has observed that groping the breasts of a child over her clothes without direct “skin-to-skin contact” cannot be termed as a sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

Justice Pushpa Ganediwala, in a judgment passed on January 19, held that there must be ‘skin-to-skin contact with sexual intent’ for an act to be considered sexual assault.

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In the judgment, the court said that groping “will not fall under the definition of sexual assault”.

Justice Ganediwala modified an order of the sessions court in which a 39-year-old man was imprisoned for three years for assaulting a 12-year-old girl. The prosecution and the minor victim’s testimony in court said that the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat. The accused groped her breast and attempted to remove her clothes.

Justice Ganediwala, however, noted that since he groped her without removing her clothes, the offence cannot be termed as sexual assault. The offence accounts for outraging a woman’s modesty under IPC section 354, the high court held.

Section 354 entails a maximum punishment of one year, however, sexual assault under POSCO has minimum imprisonment of three years.

The court said, “Considering the stringent nature of the punishment provided for the offence, in the opinion of this court, stricter proof and serious allegations are required.”

The court further added, “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.”

The court held that ‘physical contact’ mentioned that sexual assault must be ‘skin to skin’ or direct physical contact.

The court 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.”