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No sexual assault without ‘skin-to-skin contact’: Bombay HC on minor’s groping

By Saima Siddiqui 
Updated Date

New Delhi: Bombay High Court sets a bad precedent with its controversial order in a minor’s groping case, where the convict was acquitted of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct physical “skin-to-skin”  contact and sexual intent does not constitute “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act.

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The verdict was delivered by Nagpur bench of Bombay High Court by Justice Pushpa V. Ganediwala, on January 19, who while setting aside the ruling of lower court under Section 8 of POCSO against convict Satish Bandu Ragde, said that groping a minor girl’s breast without removing the top would not fall within the definition of sexual assault, but would be termed as outraging the modesty of a woman under the Indian Penal Code (IPC).

To note, the Section 8 of POCSO Act (the special law meant to deal with crimes against children), provides for stringent punishment of five years’ of rigorous imprisonment (RI), the High Court observed that “stricter proof and serious allegations are required”.

The single judge bench 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 stated. To note, the maximum sentence is five years and the minimum one year for an offence under this section.

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“Evidently it is not the case of the prosecution that the appellant removed her top and pressed her breast,” said Justice Ganediwala adding “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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

Meanwhile, the court of Extra Joint Additional Sessions Judge had foundRagde, guilty of offence of sexual assault of the 12-year-old girl under POCSO along with Sections 354 (assault or criminal force to woman with intent to outrage her modesty); 363 (punishment for kidnapping); and 342 (punishment for wrongful confinement) of the Indian Penal Code (IPC).

The 39-year-old convict had moved the High Court against the judgment through his lawyer Sabahat Ullah. Public prosecutor M J Khan submitted in the High Court that under Section 7 of POCSO, “pressing of breast” fell under the definition of sexual assault.

Referring to POCSO’s definition of sexual assault, the High Court said, “as per the definition, the offence involves following necessary ingredients — act must have been committed with sexual intent, act must involve touching the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person or doing any other act with sexual intent which involve contact without penetration.”

The hearing judge of Bombay HC Justice Ganediwala observed: “As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. 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(of the same kind). The act should be of the same nature or close to that.”

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The concerned case dates back to 2016, when the convict, Satish Bandu Ragde, had taken a minor girl into wrongful confinement and had pressed her breasts while she was running an errand for her mother. As the girl did not return for a long time, the mother went looking for her and found her in the upstairs room of Ragde’s house. The room was locked from the outside. Victim’s mother had met Ragde coming down the stairs and inquired him about her daughter’s whereabouts. Ragde had told her that he didn’t know where her daughter was.

Whereas, the girl told her mother that Ragde had held her by hand and took her to his house on the pretext of giving her a guava but instead he tried to remove her salwar and he pressed her breasts inside his room.

Afterwards, victim’s mother had filed a police complaint against Ragde, who was convicted by the lower court under both POCSO and IPC sections. Following which the convict moved to the High Court.

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