Skin to skin contact case: SC appoints amicus curae on plea against Bombay HC order acquitting man under POCSO

Considering gravity of controversy surrounding the Bombay High Court verdict holding that ldquogroping a minors breast without skin to skin contact cannot be termed as sexual assault the Supreme Court Friday appointed an amicus curiae to assist in the case in which a man was acquitted under the provision of Protection of Children from Sexual Offences POCSO ActThe top court on January 27 had stayed the operation of the January 19 verdict of the Nagpur bench of the Bombay High Court after Attorney General had mentioned it and was allowed to file an appealA bench of Justices U U Lalit and Ajay Rastogi said that in this case it needs to appoint amicus curiae looking at the gravity of the controversy as this is a case where accused cannot go unrepresentedThe bench said it will list the matter for disposal on August 24 as the first item on the board for the dayldquoWe request senior advocate Siddharth Dave to assist the court as amicus curiae Registry is directed to send papers of the case to Dave immediatelyrdquo the bench said in its orderThe top court which on January 27 stayed the high courts verdict after Attorney General K K Venugopal mentioned the matter had also issued notice to Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of the High CourtldquoIn view of what is stated we permit the learned Attorney General to file an appropriate petition against the said judgment In the meantime we stay the acquittal of the accused in Criminal Appealin respect of the offence under section 8 of the POCSO Act Issue notice to the accused and the State of Maharashtra returnable in two weeksrdquo the bench had said in its orderVenugopal while mentioning the matter before the top court had submitted that the judgment of the high court is ldquounprecedentedrdquo and is likely to set a ldquodangerous precedentrdquoThe high court verdict had said that groping a minors breast without skin to skin contact cannot be termed as sexual assault as defined under the POCSO ActIt 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 womans modesty under IPC section 354The high court had modified the order of a sessions court which had sentenced a 39yearold man to three years of imprisonment for sexually assaulting a 12yearold girlSeveral pleas have been filed in the matter challenging the verdict and similar judgements including by a lawyers body the Youth Bar Association of IndiaThe verdict further held that mere groping will not fall under the definition of sexual assaultAs per the prosecution and the minor victims 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 eatOnce there he gropped her breast and attempted to remove her clothes the high court had recorded in her verdictHowever since he groped her without removing her clothes the offence cannot be termed as sexual assault and instead constitutes the offence of outraging a womans modesty under IPC section 354 the high court had held While IPC section 354 entails a minimum imprisonment for one year sexual assault under the POCSO Act entails a minimum imprisonment of three yearsThe 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 concurrentlyThe high court however had acquitted him under the POCSO Act while upholding his conviction under IPC section 354Considering the stringent nature of punishment provided for the offence under POCSO in the opinion of this court stricter proof and serious allegations are required the high court had saidThe 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 the top and pressed her breast would not fall in the definition of sexual assault it had saidIt had further said that the act of pressing breast can be a criminal force to a woman girl with the intention to outrage her modestyThe POCSO Act defines sexual assault as when someone 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 assaultThe court in its verdict had held that this physical contact mentioned in the definition of sexual assault must be skin to skin or direct physical contactAdmittedly it is not the case of the prosecution that the appellant removed her top and pressed her breast As such there is no direct physical contact ie skin to skin with sexual intent without penetration the high court had saidThis story has been sourced from a third party syndicated feed agencies Midday accepts 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