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Grouping minor without “skin to skin, direct physical contact” not categorised as sexual assault: Bombay High Court

Hearing the sexual assault case (sexual harassment), the Nagpur Bench (Bombay HC) of the Bombay High Court held that any activity would be considered as a category of sexual assault only if ‘skin to skin contact with sexual intent’ is there. The judgment also said that ‘just touching’ would not be in the category of sexual assault.

A single-judge bench of Justice Pushpa Ganediwala was hearing an appeal against the conviction in a case where the accused had allegedly taken a minor girl to his house under the garb of offering her a guava and pressed her breasts and partially stripped her.

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgement passed on January 19, the detailed copy of which was made available now, held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault.

She said in her verdict 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.

“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 any breast, would not fall in the definition of sexual assault. It would certainly fall within the definition of section 354 of Indian Penal Code (outraging modesty),” the judge said.

Justice Ganediwala added that according to Section 7 of the POCSO Act, sexual assault on a minor would involve an act committed with sexual intent that involves physical contact without penetration.

Section 7 of the POCSO Act states, “Whoever, 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.”

Based on the above definition, the court concluded that for a person to be held guilty under this law, the act would have to be committed with a “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”.

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