On December 14, 2016, the prosecutrix, aged 12yrs went out to obtain a guava but didn’t return for a long time which led her mother to venture out and search for her. Her search took her to the Accused Satish’s residence where she enquired the accused about the whereabouts of her daughter which the accused denied to be unknown. The mother grew suspected and started searching the house of the accused. During the search, she found her daughter weeping in a room bolted from outside. Frightened prosecutrix narrated to her mother that she was lured by the accused on the pretext of giving her guava who later took her in his house and pressed her breast and attempted to remove her salwar. Immediately, the mother lodged FIR against the accused which leaded to a charge sheet filed against the accused before the Special POCSO Court, Nagpur.
Special Court Judgement
The Special Court found the accused guilty under sections 354, 363 and 342 of IPC for outraging the modesty of the women , Kidnapping and wrongful confinement respectively along with section 8 of POCSO Act and punished him with rigorous imprisonment for 3yrs with fine Rs.500/-. The accused aggrieved by this judgement preferred an appeal in the High Court of Judicature at Bombay, Nagpur Bench.
Bombay High court Judgement
The High Court, by the Judgment and Order dated 19th January, 2021 disposed of the said appeal by convicting the accused for the offence under Sections 342 and 354 of the IPC and acquitting him for the offence under Section 8 of the POCSO Act. The ratio behind the decision was that since there is no direct skin to skin contact the case would not amount to sexual assault under Section 7 of the POCSO Act and would rather come within Section 354 of the Indian Penal Code and the accused would be guilty of outraging the modesty of a women. The court made following observations:
18…The act of pressing of breast of the child aged 12 years,
in the absence of any specific details 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’. It would certainly fall within the definition
of the offence under Section 354 of the Indian Penal Code.
19. So, the act of pressing breast can be a criminal force
to a woman/girl with the intention to outrage her modesty.
The minimum punishment provided for this offence is one year,
which may extend to five years and shall also be liable to fine.
26. It is not possible to accept this submission for the
aforesaid reasons. Admittedly, it is not the case of
the prosecution that the appellant 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.
Agitated by the decision, The Attorney General of India, the National Commission for Women, and the State of Maharashtra filed a appeal against the judgement. The accused has also filed the appeal challenging his conviction for the offences under sec 354 and 342 of the IPC.
ISSUES RAISED
Whether the interpretation of the High Court of Bombay in the case of Accused Satish, that unless there is “direct skin to skin physical contact with sexual intent” the act does not tantamount to the offence of sexual assault as defined under Section 7 of the POCSO Act, is correct?
CONTENTIONS
Contentions made by Attorney general :
It was contented by the Attorney General K. K. Venugopal that all the acts of the accused including removing of salwar of accused, touching her breast fall within the purview of section 7 of the act and thus the decision of the High Court to acquit the accused on the premise that since there was no skin-to-skin contact made by the accused with the victim was an incorrect interpretation of the offence of sexual assault as defined under Section 7 of the POCSO Act.
Submissions made by Mrs. Geeta Luthra (Advocate appearing on behalf of National Commission of women) :
The Learned advocate contented that the object and reason behind enacting the provision of POCSO’s is to protect the children from the offences of sexual assault, harassments. Restricting the meaning of the word ‘physical contact’ to ‘skin to skin contact’ would be a narrow interpretation of section 7, defeating the very object of the Act. She also pointed how the principle of “esjusdem genris” and the “Rule of Lenity” was wrongly applied by high court in case as there is there being no obscurity or uncertainty in the provisions of the POCSO Act.
Submission made by an Amicus curiae :
The learned advocate Mr. Siddharth Dave brings the attention of the court on the very purpose of section 7 which is “sexual intent”, the mens rea. He submitted that in view of section 29 & 30 of POCSO act, the Court is required to presume the existence of culpable mental state on the part of the accused, and it is for the accused to prove in defence that he had no such mental state with respect to the act charged as an offence. He further established with various judgements that the culpable mental state, would amount to “sexual assault” within the meaning of Section 7 of the said Act, even though there was no ‘skin to skin contact’ between the victim and the accused.
CONTENTION RAISED BY APPELLANT
The word “assault” as used in IPC has a different connotation from the use of the said term under Section 7 of the POCSO Act and therefore the definition of the said term as defined in the IPC cannot be imported to interpret “sexual assault” as defined under Section 7 of the POCSO Act.
Although, skin to skin contact is not essential for the first part of Section 7 of the POCSO Act which pertains to touching the vagina, penis, anus or breast of the child, however, for the latter part which talks about “any other act with sexual intent” necessarily implies “skin to skin” contact. Sections 29 and 30 of the POCSO Act place a heavy burden on the accused in the form of reverse burden of proof and presumption and therefore any interpretation other than strict interpretation of Section 7 would expand the scope of the offence of sexual assault.
RATIONALE
The apex court while setting aside the judgement of High Court, observed that “sexual intent” is the primary consideration for an act to qualify as sexual assault under section 7 of POSCO Act and not the “skin to skin contact” with the child. All the acts of the accused such as pressing the breast of the victim, attempt to remove her cloth as well and tried to press her mouth falls within the ambit of section 7 and are thus, punishable under section 8 of POSCO ACT. The court further maintained that the intent of the legislature behind enacting such provision was to explicitly define that the offences against children through commensurate penalties as an effective deterrence.
Justice Bhat observed that “it is no part of any judge’s duty to strain the plain words of the statute, beyond recognition and to the point of destruction”. He clarified that the section covers within its ambit both direct and indirect touch.
DEFECTS OF LAW
The judgement of HC raises various pertinent questions regarding the interpretation of statues. It shows how delving into hyper technical terms can lead to a detrimental situation frustrating the real intention behind the enactment of a legislation that was created because the existing criminal law framework was both insufficient and ineffective in dealing with crimes against children. It is important for a judge to iron out only the creases that are found in a statute, without altering the substance of the act itself.
By accepting that there is a difference between skin-to-skin touch and groping over the clothes, the court uses the IPC which reverses the burden of proof and puts it on the accused. Thus, the accused has to now prove beyond a reasonable doubt that the skin-to-skin touch did not take place which. This would, in turn, go against what the POCSO Act stands for as it enforces a stricter guideline of “guilty until proven innocent” rather than the general rule “innocent until proven guilty” .To argue that there has been no skin-to-skin contact then goes against the facts that demonstrate that the accused has groped the child and disrobed her. This would entail venturing on to probability instead of relying on facts which is simply against the concept of justice.
INFERENCE
The single judge bench of high court has made a material error by placing reliance on a detail as trivial as whether her top was removed to come to a conclusion as grave as this is completely arbitrary. The judgement also tried to trivialises the significant issue by punishing the accused with inadequate punishment under IPC, which if not stayed by supreme court, would set a dangerous precedent.
The decision of HC also deflects from the gender-neutral aims of the POCSO Act. By laying down a judgement that punishes groping over the clothes only under s 354 of the IPC, the case does not leave any recourse to male children who may be seeking recourse under the POCSO Act for similar offences.
Since provision 7 of the POSCO act states, “whoever touches” and there were clear evidence indicating that the accused had pressed the breast of the prosecutrix, there was no need to consider the question whether he removed her top or not. The offence stands completed as soon the accused “touches” the breast of the accused. This kind of logic will have a rippling effect over the society and will raise the question regarding the effectiveness of the judgement of courts.
CHUNAUTI GUPTA
CAMPUS LAW CENTRE, UNIVERSITY OF DELHI