BOMBAY HIGH COURT’S INTERPRETATION OF ‘SEXUAL ASSAULT’

On 19th January 2021, a judgement in the case of Satish Ragde v. State of Maharashtra (2021) passed by the Nagpur Bench of the Bombay High Court gave rise to social media protests by a huge number of netizens.

Brief Facts of the case-

Satish (the accused) took the informant’s (mother of prosecutrix) daughter (aged 12 years) to his house on the pretext of giving her guava. In his house, he pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot, rescued her daughter and immediately lodged a First Information Report (FIR).

The Extra Joint Additional Sessions Judge convicted the accused of the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) read with Section 354 of the Indian Penal Code, 1860 (IPC) and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs.500/– in default of fine to suffer rigorous imprisonment for one month. After which, Satish appealed in the High Court of Bombay against the Sessions Court’s judgement.

What are the provisions under which the accused was convicted?

Section 7 of the POSCO Act provides, “Whoever, 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 assault”.

The punishment for this offence as provided under Section 8 of the POCSO Act is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Section 354 of the IPC states, “Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine”.

The Bombay High Court’s Order-

Considering the stringent nature of punishment provided for the offence of sexual assault, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of the 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, but would certainly fall within the definition of the offence under Section 354 of the IPC.”

The Court further stated that it is not the case of the prosecution that the appellant removed her top and pressed her breast, so there is no physical contact, i.e. skin to skin contact of sexual intent without penetration.

Stating the above reasons, the Bombay High Court acquitted the appellant under Section 8 of the POCSO Act and convicted him with a minor offence under Section 354 of IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- in default of fine to suffer rigorous imprisonment for one month and issued a non-bailable warrant against the appellant.

This judgement/order and interpretation of the Court brought in huge criticism. The Court did mention saying it was an outrage of the girl’s modesty but as there was no skin to skin touch, this was not a case of sexual assault, the Court failed to take into consideration the mental trauma that the little girl has to go through throughout her lifetime. Along with that the Court failed to realize that the precedent laid down has potential of being notoriously used for unjust purposes.

An appeal is filed against this judgement in the Supreme Court of India (SCI) and a stay is ordered by a Bench headed by the Chief Justice of India- SA Bobde after the Attorney General- KK Venugopal stated that the Bombay High Court has come to a very disturbing conclusion in this matter which could also stand as a dangerous precedent. Now the country awaits for the SCI to uplift the stay and come to a conclusion in this matter.

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