The Bombay High Court was hearing the plea of the accused, who was sentenced to jail for sexually assaulting a minor girl.
In a recent ruling by the Nagpur bench of the Bombay High Court, it was observed that there should be "skin-to-skin contact with sexual intent" in order to be considered as sexual assault. The ruling also said that 'mere groping' will not fall under sexual assault.
The Bombay High Court was hearing the plea of the accused, who was sentenced to jail for sexually assaulting the minor girl.
Observing that the prosecution in the case had failed to present the case of the victim properly, Kanoongo has stated that "if the prosecution had made the submissions as per the spirit of the POCSO Act, the accused would not have been acquitted from the series offence against the minor".
He added that the Court's remarks on, "skin to skin with sexual intention without penetration" needs to be reviewed as the said remark is derogatory to the minor victim, which the State should take note of.
Kanoongo further raises concerns about the disclosure of the victim's name in the judgment, which was brought to light after the order copy was circulated in the media.
He opines that the State should take necessary steps to ensure that the original identity of the victim is not disclosed.
Kanoongo has further requested for details of the minor victim (maintaining strict confidentiality) so that the Commission can provide help including legal aid, etc.
In a controversial ruling, Justice Ganediwala of the High Court's Nagpur Bench had ruled that the act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the POCSO Act.The High Court further ruled that mere touching the chest of the minor will not amount to sexual assault unless the accused removes clothes of the victim or slid hands inside the garments, making it a physical contact.
The single-judge bench of Justice Pushpa Ganediwala modified the conviction of a man while pronouncing the ruling.
The sexual assault under the POCSO Act involves committing assault with sexual intent and getting physical without penetration by touching the private parts of the child or making the child touch the private organs of the accused, noted the judge in the court hearing.
"Admittedly, it is not the case of the prosecution that the accused removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration,"
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