Youth Incorporated Magazine

The Bombay High Court’s ruling came as a troubling shock when it said that, under POCSO or Protection of Children from Sexual Offences Act, “a sexual assault won’t be a sexual assault if it doesn’t involve direct ‘skin-to-skin’ contact.”

This came after the High Court reversed the ruling passed by a session court that convicted 39-year-old Bandu Ragde under Section 8 of the POCSO Act and under IPC section 354, sentencing him to three years of imprisonment. The convict was charged with section 7 of the POCSO Act for sexually assaulting a 12-year-old girl by luring her into his house. The convict had groped her by pressing her breast and also attempted to remove her salwar. 

After being sentenced to the punishment mentioned under section 8 of the POCSO Act by a session court, the convict had appealed to the High Court. As a consequence, the Nagpur bench of the Bombay High Court under the hearing of Justice Pushpa Ganediwala acquitted Ragde under the POCSO Act and upheld him under IPC section 354. 

Justice Puspa Ganediwala stated the lack of stricter proof and serious allegations as the grounds on which the convict was acquitted. 

Before we try to identify what is really disturbing and wrong about the verdict given by Justice Puspa Ganediwala, it is important we understand what IPC section 354 and section 7 and 8 of the POCSO Act entail. 

IPC Section 354:

This is what section 354 of the Indian Penal Code defines sexual assault as: “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both,” mentioned on Indian Kanoon.  

POCSO Act of 2012: A law that seeks to provide protection to minors from any kind of sexual exploitation and pornography.  

Section 7

Sexual Assault under section 7 of the POCSO is defined as follow: “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.”

Section 8

Under this section, punishment for committing the offense under section 7 is mentioned. Anyone found guilty should be punishable with 3-5 years of mandatory imprisonment.  

Now, you must focus on each word laid down in explaining what makes a sexual assault a sexual assault under POCSO’s section 7. 

The section clearly states that any other Act, besides the touching of  vagina, penis, anus or breast of the child, with sexual intent which involves physical contact, is sexual assault.” The Bombay High Court, however, said that since the victim was groped over her clothes and the act involved indirect contact, it cannot be called a sexual assault. 

Let’s look at everything that is wrong with the verdict:

• The court says that since there was no ‘skin-to-skin physical contact’, a sexual assault will not be identified as sexual assault. Now, where exactly in section 7 is it mentioned that the act needs to involve skin-to-skin contact? Nowhere!

• Rather, it mentions that any kind of physical contact having sexual intent amounts to a sexual assault. Nevertheless, the section has been wrongly interpreted.

• By passing a verdict such as this, a wrong message gets conveyed by the judiciary, that any other kind of touch be it groping, touching inappropriately, pawing, etc involving no skin-to-skin touch is acceptable.

• However, section 354 of the Indian Penal Code will come to the rescue in such a case as it recognizes an act that outrages a woman’s modesty or can lead to it, as a sexual assault. The problem here is, this applies only to women. Men or minor boys who too are victims of sexual assault will be rendered without any legal protection.

• We all, not just women, are born with natural instincts that tell us the difference between a good and bad touch. They help us recognize what is unacceptable. So, in my opinion, we don’t need a definition to tell us what counts as sexual assault and what does not. Anything, anyone does to our bodies without our consent or any touch that makes us uncomfortable, by default amounts to an assault, and if there is a sexual intent involved, then a sexual assault. The verdict, however, seems to have hardly chosen to identify or even consider it.

• What this verdict also implies is that now anyone can grope little children, touch them inappropriately over their clothes and simply get away with it as this act of theirs won’t be considered as a sexual assault. Doesn’t this sound gravely dangerous?

• Further, the court has wrongly interpreted ‘physical contact’ as one which involves only ‘skin-to-skin’ touch. I’d like to clarify that even a slight touch is a physical contact, clothed or unclothed. Irrespective of this basic understanding, section 7 of the Act does not mention the need for ‘skin-to-skin contact’ to identify the act in question as a sexual assault.  If that would have been the case, the act would have clearly said so.

• This said, the ordeal that the 12-year-old had to go through satisfies all the criteria under section 7 that is required to punish the convict. Therefore there remains absolutely no reason to not punish him. In spite of this, the Nagpur bench of Bombay High Court chose to acquit him from POCSO and rather sentence the convict to a much lesser punishment of probably one year of imprisonment under IPC section 354; a punishment that is much much lower than the severity of the crime committed.

Very recently though, this verdict of the Bombay High Court passed on 19th January, was challenged in the Supreme Court of India by Attorney General (AG)  KK Venugopal stating that this ‘disturbing’ verdict poses a danger of setting a “dangerous precedent.” The AG has filed a petition against the order. Following this, the three-judge bench of the Supreme Court headed by CJI SA Bobde has currently stayed the acquittal of the convict. The court has also sought a response from the convict as well as the Maharashtra government in two weeks after which an apex court will begin looking into the case.