The Nagpur bench of the Bombay High Court, while quashing the conviction of a 28-year-old man, recently held that "merely moving hand over the back and head of a minor girl without any sexual intent" does not amount to outraging her modesty.
The order was passed on 10 February, but it was made available only on 13 February.
What Did The Court Say?
The case dates back to 2012 when the convict, who was 18 years old at the time, was booked on charges of outraging the modesty of a 12-year-old girl.
A single bench of Justice Bharati Dangre, while setting aside the conviction on Tuesday, said that there was "no sexual intent" and that the accused person's words indicated that she was merely a child.
"In order to outrage the modesty of a woman, what is most important is having an intention to outrage the modesty. It is not the case of the prosecution that the accused did something more than what has been alleged, that is, moving his hand over the back and head of the victim," the judge observed in the order.
But Who Decides 'Intent'?
Sexual assault, under the Protection of Children from Sexual Offences (POCSO) Act, attracts a minimum punishment of three years. On the other hand, outraging a woman's modesty – Section 354 of the Indian Penal Code – attracts a minimum punishment of only one year.
How does one decide what the 'intent' was? Were the minor's words that she was "uncomfortable" even taken into consideration in the verdict?
"Sexual intent is important to show abuse and it is important that the child victim's discomfort is recorded in his/her statement under Section 164 CrPC (recording of confessions and statements) to solidify the persecution's case. If the same is proven by the prosecution, intent of the accused should not matter in that case," Nimisha Menon, Program Officer, iProbono, told The Quint.
However, cases like this constantly bring up the question of whose perception should be taken into account in determining whether there was sexual intent.
"The determination of whether certain conduct can amount to sexual harassment or assault under the POCSO hinges upon the sexual intent behind the act. Cases like this one consistently bring up the question as to whose perception, whether the survivor or the alleged perpetrator, should account for deciding whether or not an act was done with sexual intent," explained Radhika Roy, Law Researcher at the Delhi High Court.
"Fortunately, the Supreme Court recently laid to rest this dilemma by stating that sexual intent is always a question of fact, which is to be determined from the attendant circumstances."
Roy added, "While I personally feel more weightage should be given to the survivor's interpretation of certain conduct, given the subjective sensibilities of people, such an approach has the potential of incriminating people whose actions may at worse be termed as over-friendly. Thus, to ensure that that's not the case, the surrounding circumstances need to be considered while deciding if the intent behind an act is sexual or not."
The 'Skin to Skin' Contact Order by Same Court
In 2021, the Supreme Court stayed a controversial acquittal order of an accused in a case where the Nagpur Bench of Bombay High Court had said that groping a minor's breast without "skin to skin contact" can't be termed as sexual assault as defined under the POCSO Act.
A sessions court had previously held a 39-year-old man guilty of sexual assault for groping a 12-year old and attempting to remove her salwaar.
However, Justice Puspha Ganediwala of the Bombay High Court modified the order of the sessions court and sentenced the man under Section 354 IPC (outraging a woman's modesty), observing that there was no "specific detail" as to whether the minor's top was removed and there was any skin-to-skin contact.
"Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required."
The court also added: "The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty."