The Bombay High Court on Sunday said that groping a minor's breast without "skin to skin contact" does not amount to sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
During a judgement hearing last week, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court maintained that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. In her verdict, she said that mere groping will not fall under the definition of sexual assault.
Justice Ganediwala modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
According to the prosecution, the accused had lured the minor to his house in Nagpur on the pretext of giving her something to eat. Once there, he gripped her breast and attempted to remove her clothes.
The court said since he groped her without removing her clothes, the offence cannot be termed as sexual assault, instead, constitutes the offence of outraging a woman's modesty under IPC section 354.
The high court has hence 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," HC 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 said.
Justice Ganediwala further said in her verdict that "the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty".
