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Supreme Court stays Bombay High Court judgment which ruled skin-to-skin contact necessary for ‘sexual assault’

The Supreme Court on Wednesday stayed the controversial judgment of the Bombay High Court which had held that pressing the breast of a 12-year old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences Act (POCSO).

 The stay was ordered by a Bench headed by Chief Justice of India, SA Bobde after Attorney General KK Venugopal mentioned that matter submitting that “it is a very disturbing conclusion (by Bombay High Court).”

“Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks,” the top court ordered.

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 words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure (sic) to that”, the Court opined acquitting the accused under POCSO.

The judgment invited scathing criticism with legal experts and laymen alike questioning the rationale behind such a conclusion.

Earlier today, an appeal was filed by Youth Bar Association of India against the Bombay High Court judgment.


Via Bar & Bench
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