‘Skin-to-skin’ contact verdict in POCSO case means acquittal for abuser with gloves: Attorney General in SC

On January 19, the Nagpur bench of Bombay High Court acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act.

Urging the Supreme Court on Tuesday to reverse the impugned judgment, the Attorney General stated that the judge had failed to see “the far-reaching consequences” of the verdict and called it a “dangerous and outrageous precedent.”

“If tomorrow a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment. This is outrageous. Saying that skin-to-skin contact is required would mean a person wearing gloves getting an acquittal,” Venugopal said.

A bench comprising Justices UU Lalit and Ajay Rastogi was hearing the Attorney General’s plea against Justice Pushpa V Ganediwala‘s judgment. The State of Maharashtra’s counsel Rahul Chitnis backed Venugopal’s arguments.

What does the Bombay High Court order say?

The high court had reversed the decision of a sessions court, which had convicted a 39-year-old man under Section 8 of the POCSO Act, and sentenced him to three years in jail. Section 8 prescribes the punishment for the offence of sexual assault defined in Section 7 of the Act.

In her verdict, Justice Pushpa V Ganediwala said: “As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration”. The bench observed that “the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty.”

“In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo RI,” the judge said.

What did the Supreme Court say?

On January 27, the Supreme Court had stayed the Bombay High Court order. The National Commission for Women also filed a separate appeal against the judgment. On August 6, the Supreme Court had appointed Senior Advocate Siddharth Dave as an amicus curiae in the matter.

Since the accused did not have an advocate despite service of notice on Tuesday, the bench ordered the Supreme Court Legal Services Committee to ensure representation. The matter has been posted for final hearing on September 14, along with a plea against another Bombay High Court judgement, which held that acts like “holding the hands of a minor” and the accused “opening of zip of the pant” does not amount to sexual assault under the POCSO Act.

— With inputs from LiveLaw