The Bombay High Court has modified the order of a sessions court, which had sentenced a 39-year-old man to three years imprisonment for sexually assaulting a 12-year-old girl in December 2016.
The victim’s testimony in court was that the accused, known as Satish, had taken her to his house in Nagpur on the pretext of giving her something to eat.
While there, he touched her breasts and attempted to remove her clothes.
However, since he groped her without removing her clothes, the offence cannot be termed sexual assault in law and, instead, constitutes the lesser offence of outraging a woman’s modesty, the high court held.
Groping a minor’s breast without “skin to skin contact” cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences Act, the court said.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on Jan 19, held that there must be “skin to skin contact with sexual intent” for an action to be considered sexual assault.
She said in her verdict that mere groping through clothing will not fall under the definition of sexual assault.
As such the offence entails a minimum sentence of imprisonment for one year, whereas sexual assault entails a minimum imprisonment of three years.
The sessions court had sentenced Satish to three years imprisonment, but the high court, having acquitted him of sexual assault while upholding his conviction of outraging a woman’s decency, sentenced him to one year.
“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,” the verdict said.
“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,” the High Court ruled.