there must be “skin-to-skin contact with sexual intent”
The Bombay High Court is causing debate after acquitting an Indian man of sexual assault, as there was no “skin-to-skin contact”.
The controversial judgement came from the court on Wednesday, January 27, 2021.
39-year-old Bandu Ragde was freed of sexual assault charges under the Protection of Children from Sexual Offences (POCSO) Act after he had groped a minor girl aged 12.
However, Justice Pushpa Ganediwala reasoned that because Ragde did not remove her clothes, then it cannot be sexual assault as he did not make direct contact with her skin.
Instead, the court gave the conviction of “outraging a woman’s modesty” under Section 354 of the Indian Penal Code (IPC).
There has been a major outcry from activists and organisations who find are completely outraged by this ruling.
Attorney general Kottayan Katankot Venugopal was disturbed by the High Court’s judgement.
As a result, he is filing an appeal against the controversial court ruling.
The chief justice of India, in a hearing in New Delhi, issued a notice to the state government of Maharashtra, where the incident occurred in 2016, and permitted the attorney-general to file an appeal against the ruling.
The chief justice said: “We stay the order and issue notice.”
Karuna Nundy, a lawyer at the Supreme Court of India was not impressed with the ruling either. She said bad judgments like this “contribute to impunity in crimes against girls”.
The judgment was called “shameful, outrageous, shocking and devoid of judicial prudence,” by Ranjana Kumari, director of the women’s rights non-profit Centre for Social Research in India.
The Ragde Case
The Bombay High Court reasoned that the offence under the POCSO Act carries a higher punishment. Therefore, they need a higher standard of proof for conviction.
For a crime to be sexual assault, according to the judge, there must be “skin-to-skin contact with sexual intent”.
Justice Ganediwala said:
“The 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’.”
As she was on her way, Ragde stopped her and told her he would give her the fruit and took her to his house nearby.
In his house, he pressed her breast and also tried to remove her salwar (bottoms). When her daughter shouted for help, Ragde then fled.
The mother says a neighbour had told her that a man had taken her daughter into his house.
However, when he was confronted he denied even seeing her, after which she was prompted to search the house. And thus, found her daughter who told her what had happened.
In defence of Ragde, his lawyer Sabahat Ullah stated the mother’s statement was based on hearsay because she herself did not witness the alleged incident. Also raising doubt about the girl’s narrative.
However, these submissions were rejected by the bench.
Public prosecutor M J Khan opposed the appeal made by Ullah and argued that the offence was of a sexual assault nature.
But the bench observed unacceptability of the submissions because when Ragde committed the offence, he had not removed the top of the minor.
Pravin Ghuge, former chairman of the state Child Rights Commission said:
“On prima facie perusal of the order, I feel that when section 354 of the IPC is applied in the case of a minor, then both section 7 and 8 of the Pocso Act has to be applied as well.
“The Act has been made with the aim of safeguarding minors against sexual assault and hence the investigators and the lawyers should pay attention to the fact while collecting evidence, arguing or passing orders and ensure that the accused person is not let off easily.”
POCSO Act Definition of Sexual Assault
The 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 penetration is said to commit sexual assault.”
Sexual assault under the POCSO Act carries a sentence of three to five years in prison.
However, it is mandatory to impose the minimum sentence.
Courts use a minimum mandatory sentence in an attempt to emphasise the seriousness of the crime in question.
However, legal experts have argued that such sentences are counterproductive to the aim of reducing crime.
They recommend that, instead of harsher punishment, courts implement judicial reform to make the sentencing process more accountable and transparent.