New Delhi: The provision defining
the offence of sexual assault against children under the Protection of Children
from Sexual Offences (POCSO) Act must be looked at from the “victim's
perspective” and if the “sexual intent” is present, then the offence is made
out even without “skin-to-skin contact”, the Supreme Court Thursday observed.
A bench headed by Justice UU Lalit stressed on the intent to
commit the sexual offence and said the results would be “disastrous” if the
term “physical contact” in the provision is interpreted in a way where the
skin-to-skin contact becomes necessary for constituting the offence.
The top court reserved its verdict on two appeals filed
against the Bombay High Court verdict, which had come under intense scrutiny,
and had held that no offence of sexual assault under the Protection of Children
from Sexual Offences (POCSO) Act is made out if there is no direct “skin-to-skin
contact between accused and the victim.
The bench, also comprising Justices S Ravindra Bhat and Bela
M Trivedi, discussed threadbare the definition of Section 7 of the POCSO Act
which deals with the offence of sexual assault against the children.
The provision says: “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.”
“So, therefore, the primary thing is that if the sexual intent
is proved then everything will fall in place,” the bench orally observed while
expressing its reservation on the interpretation made by the high court.
Senior advocate Siddhath Luthra, appearing for the convict in
the case as an amicus curiae, referred to the contents of the provision and
said that there were issues with the first part of the provision which said if
an accused, 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” then the offence of sexual assault is made out.
However, the second part of the provision said that for
constituting the offence of sexual assault, an accused has to commit an act “which
involves physical contact without penetration” and here the “skin-to-skin”
interpretation creeps in.
Mr Luthra said the second part “requires sensitive
interpretation”.
One must rely on different situations to see whether a given
interpretation logically holds and when an offence has been clearly laid down
then if there was any need to stretch one's reasoning and rely on other
provisions, the bench said.
“One must look at things from the victim's perspective. If a
pen is used to poke a person, there is no skin-to-skin touch and according to
arguments advanced there is no sexual assault. But there is an invasion of
privacy and violation of modesty of the child,” it said.
“If we accept the submission (on physical contact without
cloth), what kind of results will we get. According to us, the results will be
disastrous,” it observed.
Mr Luthra said the legislature consciously used the term
''physical act'' in the second part of the provision.
“So, do we understand your submission that the first part
skin to skin need not be there? According to you, in the second part skin to
skin contact is essential,” the bench asked.
Another amicus curiae Siddhart Dave and others argued in the
case and the counsel for Maharashtra adopted the submissions of Attorney
General KK Venugopal who had vehemently argued for the setting aside of the
verdict by the Nagpur bench of the Bombay High Court.
While reserving the verdict, the bench asked parties to file
their written submissions within three days.
Mr Venugopal had earlier told the top court that the
controversial verdict of the Bombay High Court would set a “dangerous and
outrageous precedent” and needed to be reversed.
The top court, which was hearing separate appeals of Attorney
General and the National Commission for Women (NCW), had on January 27 stayed
the order which had acquitted a man under the Protection of Children from
Sexual Offences (POCSO) Act saying “groping a minor's breast without ''skin to
skin contact'' cannot be termed as sexual assault”.
Two judgments were passed by Justice Pushpa Ganediwala of
Bombay High Court (Nagpur Bench).
Earlier, while staying the judgements, the top court had also
issued notice to the Maharashtra government and permitted the Attorney General
to file an appeal against the verdict.
The verdict had said groping a minor's breast without “skin-to-skin
contact” cannot be termed as sexual assault as defined under the POCSO Act.
It had said 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 woman's modesty under IPC section 354.
The high court had modified the order of a sessions court,
which had sentenced a 39-year-old man to three years of imprisonment for
sexually assaulting a 12-year-old girl.
The verdict had held that mere groping will not fall under
the definition of sexual assault. As per the prosecution and the minor victim's
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 eat.
Once there, he gripped her breast and attempted to remove her
clothes, the high court had recorded in her verdict.
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