“Purpose of the law cannot be to allow the offender to escape the meshes of the law,” the apex court said
Nagpur: The Supreme Court on Thursday set aside the judgement of Nagpur Bench of Bombay High Court which held that groping a minor’s breast without “skin to skin contact” can’t be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act. “Purpose of the law cannot be to allow the offender to escape the meshes of the law,” the apex court said.
Notably, the Nagpur Sessions Court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently.
Justice Pushpa Ganediwala of the Nagpur Bench of the Bombay High Court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354. Groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault as defined under the POCSO Act, the judgement said. She said in her verdict that mere groping will not fall under the definition of sexual assault. Justice Ganediwala modified the order of the Sessions Court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
The Supreme Court Bench headed by Justice U U Lalit and comprising Justices S Ravindra Bhat and Bela M Trivedi, quashed the High Court judgment and said that the most important part of constituting sexual assault is sexual intent and not skin-to-skin with the child adding that the purpose of the law cannot be to allow the offender to escape the meshes of the law.
“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench said. The top court, which was hearing separate appeals of Attorney General and the National Commission for Women (NCW), had on January 27 stayed the order which 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 .
As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict. However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the High Court had held.