Pinnacle Court reversed Bombay High Court judgement, says ‘skin-to-skin’ contact not needed for sexual assault under POCSO Act

The top court today clearly moved out Bombay High Court order that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A bench headed by Justice U U Lalit observed and delivered that sexual intent is important in such cases and that it can’t be taken away from the purview of the Act. The purpose of the law cannot be to allow the offender to escape the meshes of the law.

The court made the decision while hearing appeals by Attorney General KK Venugopal, NCW and the State of Maharashtra against the January 12 ruling of the Nagpur Bench of the Bombay HC.

Senior Advocate Sidharth Luthra had argued for the accused and said, "sexual intent requires physical contact but, in this case, the clothing was touched not the skin."

Justice Bhat then pointed out that this is not the first instance of an Attorney General filing an appeal, and referred to an earlier criminal appeal filed by the Attorney General against a judgment of the Rajasthan High Court directing public hanging of the accused(a case of the year 1985).

Justice Pushpa Ganediwala had said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman's modesty under IPC section 354.

Justice Bela Trivedi, who read out the operative portion of the judgment, stated that restricting 'touch' or 'physical contact' under Section 7 of POCSO is absurd and will destroy the intent of the Act, which is enacted to protect children from sexual offences.

On January 27, the Supreme Court had stayed the order that had acquitted a man under the POCSO Act, saying "groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault".