Skin-to-skin contact: SC stays HC order acquitting accused

The Supreme Court on Wednesday stayed a judgment of the Bombay High Court holding that groping a child’s breast without removing her top is no sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Permitting Attorney General K.K. Venugopal to file an appropriate petition challenging January 19, 2021, High Court judgment, Chief Justice Sharad A. Bobde heading a three-judge bench comprising Justice A.S. Bopanna and Justice V. Ramasubramanian stayed the acquittal of accused Satish and issued notice to him and the Maharashtra government.

“In view of what is stated, we permit the learned Attorney General to file an appropriate petition against the said judgment”, the court said ordering that “In the meantime, we stay the acquittal of the accused … in respect of the offence under section 8 of the POCSO Act.”

The notice to accused Satish and state of Maharashtra is returnable in two weeks.

At the outset of the hearing on Wednesday, Attorney General Venug opal in a mentioning described the January 19 judgment as a “disturbing conclusion” and asserted that it “sets a dangerous precedent”.

The Attorney General said that the Centre will file a petition challenging the High Court verdict on Thursday.

The High Court ruling came in an incident dating back to December 2016, the victim girl’s mother complained that the accused took her daughter to his house on the pretext of giving her a guava, pressed her breasts and tried to remove her salwar. The mother immediately lodged an FIR against accused Satish, who was held guilty in February 2020 and sentenced to three years of rigorous imprisonment and a fine of `500 by a trial court under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 363 (kidnapping) and 342 (wrongful confinement) of the IPC, and Section 8 (punishment for sexual assault) of the POCSO Act.

On his appeal, the Nagpur Bench of the Bombay High Court held that “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 said.

Holding that the crime falls under Section 354 of the Indian Penal Code and convicted him to a year’s rigorous imprisonment instead of three years of rigorous imprisonment.

Meanwhile, the Youth Bar Association of India has also filed a petition in the top court challenging the High Court verdict. The petition asserts that the observations and reasoning in the verdict would “lead to a dastardly situation.”

The National Commission for Protection of Child Rights too has demanded the review of the High Court order.