'Skin-to-skin' Verdict: AG Terms Bombay HC's POCSO Acquittal as 'Outrageous', Seeks Reversal from SC

Attorney General K K Venugopal Tuesday told the Supreme Court that the controversial verdict of the Bombay High Court which had held that no offence of sexual assault under the POCSO Act is made out if there is no direct skin-to-skin' contact between accused and the victim child would set a "dangerous and outrageous precedent" and needed to be reversed. The top court, which was hearing separate appeals of Attorney General and the National Commission for women (NCW), on January 27 had 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.

Seeking setting aside of verdict, the law officer advanced arguments before a bench of Justices U U Lalit and Ajay Rastogi and said, touching of the breast of a minor even without removing the top amounted commission of offence of sexual assault under the Act. "Suppose, tomorrow a person, wearing surgical gloves, touches the entire body of minor, then he would not be punished for sexual assault as per this judgment. 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 said. He also referred to the definition of sexual assault under section 7 of the POCSO Act and said that this provides for a jail term of three years and is akin to the offence of outraging the modesty of a woman under section 354A of the IPC.

He referred to the facts of the case as well and said that the minor, who was stalked and groped by the accused, raised the alarm at the top of her voice and an FIR was lodged without any delay. Letting go an accused, who also attempted to pull down salwar' of the minor, will be against the definition of the Act, the law officer said, adding that going by the approach of the high court, anybody can get away with the offence by wearing surgical gloves..

Maharashtra and NCW concurred with the views of the Attorney General. As nobody appeared on behalf of the accused despite the service of the show cause notice, 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. 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.

Two judgments were passed by Justice Pushpa Ganediwala of Bobmay High Court (Nagpur Bench). Earlier, while staying the judgements, the top court had also issued notice to Maharashtra government and permitted the AG to file an appeal against the verdict.

The verdict had 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 said that since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman's modesty under IPC section 354. The high court had 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.

The verdict had further held that mere groping will not fall under the definition of sexual assault. As per the prosecution and the minor victim's testimony in court, in December 2016, the accused, one Satish, had taken the girl 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 high court had recorded in her verdict.

However, since he groped her 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, the high court had held. 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 said.

The POCSO Act defines sexual assault as when someone "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". The court had held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.

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