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.
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.
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.”
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.
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.
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