Groping without skin contact is not sexual assault: Bombay HC

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In a controversial ruling, the Nagpur bench of the Bombay High Court observed that groping a minor’s breasts without “skin-to-skin” contact doesn’t qualify as sexual assault.

Justice Pushpa V Ganediwala modified a lower court’s verdict, which held a man guilty for groping a 12-year-old girl over four years ago.

Though the judgment was pronounced on January 19, it drew attention only recently.

Full Case

In December 2016, man violated minor inside his home

The single-judge bench made the observations while hearing a plea of the accused Satish Bandu Ragde.In December 2016, he lured the minor into his home in Nagpur under the pretext of giving her something to eat. He then attempted to disrobe the girl and groped her.Five witnesses — the minor, her mother, a neighbor (who heard her screams), and two cops — were examined by the prosecution.

Verdict

Accused was sentenced to three years imprisonment, challenged verdict

Later, a Sessions Court found Ragde guilty under IPC Sections 354 (outraging women’s modesty), 363 (kidnapping), and 342 (wrongful restraint) as well as Section 8 of Protection of Children from Sexual Offences (POCSO) Act. He was sentenced to three years of imprisonment.After Ragde’s lawyer Sabahat Ullah approached HC, public prosecutor MJ Khan argued that the definition of sexual assault applied in this case.

Ruling

HC said the accused didn’t remove victim’s clothes

Giving the accused a reprieve of sorts, Justice Ganediwala 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.”However, the HC did pronounce him guilty under IPC Sections 342 and 354.

Details

Physical contact with sexual intent necessary said the judge

Explaining what qualifies as sexual assault and what doesn’t, Justice Ganediwala said that “the act must have been committed with sexual intent, act must involve touching the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person or doing any other act with sexual intent which involve contact without penetration.”

Statement

HC modified order, cut down prison time to one year

As she reduced Ragde’s time in prison from three years to one year, the judge also underscored that it was “the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime.”The accused was imprisoned in February 2020 and after HC’s order will now have to spend only one month behind bars.

Reaction

Verdict invited sharp criticism, expert spoke of POCSO Act’s relevance

Reacting to the verdict, Pravin Ghuge, ex-Chairman of the state Child Rights Commission, said that since IPC Section 354 was applied in this case, Sections 7 and 8 of the POCSO Act should have also been evoked.He underlined that POCSO Act intends to protect minors from sexual assault, hence, investigators and lawyers must ensure that no guilty person is let off easily.

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