The Supreme Court of India on Wednesday stayed the acquittal of the accused under the Bombay High Court Judgement which held that pressing of breasts of a minor girl without disrobing does not amount to “sexual assault” within the meaning of Section 8 of POCSO Act.
The order was passed by a bench headed by the Chief Justice of India on a mention made by the Attorney General, KK Venugopal. Attorney General KK Venugopal submitted that the judgment which held that ‘skin to skin’ contact is necessary for sexual assault under POCSO Act is ‘unprecedented’ and is ‘likely to set a dangerous precedent’
The High Court had on January 19 ruled that pressing the breast of a 12-year old child without removing her clothes will only fall within the definition of outraging the modesty of woman under Section 354 of Indian Penal Code (IPC).
Whereas the punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3-5 years, the punishment under Section 354 of IPC is imprisonment of 1-5 years.
The Bombay High Court had opined that considering the stringent nature of punishment provided for the offence, stricter proof and serious allegations are required. It also observed that the punishment for an offence should be proportionate to the seriousness of the crime.
The High Court had then proceeded to examine Section 7 of POCSO and the ingredients of the offence of ‘sexual assault’.
The ingredients for constituting the offence of ‘sexual assault’ are that the act must have been committed with sexual intent and it must involve touching the vagina, penis, anus or breast of the child or ‘any other act’ which are similar to the acts specifically mentioned in the provision, the High Court said.
The judgment invited harsh criticism with legal experts and citizens alike questioning the rationale behind such a conclusion.