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SATISH S/O BANDU RAGDE VS STATE OF MAH., THR. P.S.O. … ON  19 JANUARY, 2021

Case Comment, Publications

CASE COMMENT

FACTS

Satish, the accused, lived in the same neighborhood as the 12-year-old girl, who is the prosecution’s witness. On December 14, 2016, around 11:30 a.m., the girl went out to pick guavas. She didn’t return for an extended period, prompting her mother, who is the informant,  to search for her. A nearby resident named Sau Divya Uikey informed the mother that the accused had taken her daughter to his house.

In response, the mother went to the accused’s house. The accused came down from the first floor when she arrived. After inquiring about her daughter, the accused claimed that the girl was not in his house. Despite this, the mother entered the accused’s house in search of her daughter after hearing cries coming from the first floor. On the first floor, she found a room with a door bolted from the outside. She opened the door and discovered her daughter crying inside.

Upon questioning her daughter, she learned that the accused had lured her by promising guavas, taking her to his house, touching her inappropriately, and attempting to remove her clothing. The victim had tried to scream, but the accused covered her mouth. Subsequently,  the accused left the room and bolted the door from the outside. Upon learning these details,  the mother filed a complaint at the Gittikhadan Police Station in Nagpur.

ISSUES:

1. Does the act of attempting to remove the victim’s salwar constitute sexual assault under Section 7 and fall under the purview of punishment outlined in Section 8 of the  POCSO Act?

2. Can the accused be deemed guilty of sexual assault under Sections 7 and 8 of the  POCSO Act, even if there was no skin-to-skin contact?

3. Is the accused liable under Sections 7 and 8 of the POCSO Act?

CONTENTIONS OF THE ACCUSED SIDE:

The accused side argued that the offense under Section 354 of the IPC has a distinct meaning and effect that cannot be directly applied to interpret Section 7 of the POCSO Act. They pointed out that terms like ‘sexual intent,’ ‘touches,’ and ‘physical contact’ are not defined in the POCSO Act, but Section 11 explains that questions involving ‘sexual intent’ are questions of fact. They cited the Bombay High Court’s decision in the case of Bandu Vithalrao Borwar  v. State Of Maharashtra, which emphasized that ‘sexual intent’ should not be confined to a  specific format or structure.

Furthermore, the accused side highlighted that the IPC offense under Section 354 uses the terms ‘assault’ and ‘criminal force,’ which differ from ‘sexual assault’ defined in the POCSO  Act. They argued that while Section 2(2) of the POCSO Act allows for the importation of  IPC definitions, these distinctions should be respected. They also contended that while the first part of Section 7 may not require ‘skin-to-skin contact,’ the second part, involving “other acts with sexual intent” that include physical contact without penetration, does require such contact. The accused suggested that the victim, a 12-year-old, might lack mental capacity or intelligence.

CONTENTIONS OF THE PROSECUTION SIDE:

The prosecution countered the accused’s contentions by referring to Sections 29 and 30 of the  POCSO Act, which establish a presumption and a reverse burden of proof on the accused.  They drew an analogy with similar provisions in the NDPS Act to demonstrate that these legal mechanisms make it challenging for an accused to prove their innocence. They emphasized that when interpreting a statute, courts should strive to discern the legislature’s intention and promote the law’s objectives while preventing potential misuse.

Regarding Section 7 of the POCSO Act, which deals with “sexual assault,” the prosecution noted that it consists of two parts. The first part pertains to touching specific sexual body parts with sexual intent, while the second part involves “any other act” done with sexual intent that includes physical contact without penetration. The prosecution referred to dictionary definitions of the words “touch” and “physical contact” to support their argument that these terms are broad in meaning. They asserted that the interpretation of “touch” is specific to sexual body parts, while “physical contact” applies to any other act. Thus, any act involving either “touch” or “physical contact” with sexual intent would qualify as “sexual assault” under Section 7 of the POCSO Act.

The prosecution rejected the notion that “physical contact” should be limited to ‘skin-to-skin’  contact, citing the maxim ‘Ut Res Magis Valeat Quam Pereat’ which suggests that an interpretation should give effect to a rule rather than destroy it. They argued that such a  narrow interpretation would undermine the law’s purpose. They emphasized that “sexual intent” is the key ingredient for constituting sexual assault under Section 7, not “skin-to-skin”  contact. Consequently, “skin-to-skin contact” is not required to establish an offense of sexual assault. The prosecution emphasized that any act involving touching a child’s sexual body parts or any other act with sexual intent should not be trivialized or excluded from the scope of “sexual assault” under Section 7.

In conclusion, the prosecution argued that the law should be interpreted considering the nature of the offense and the objectives of the law, preventing offenders from evading legal consequences. Section 29 allows the Special Court to presume the accused’s guilt unless proven otherwise when charged with offenses under the POCSO Act. The prosecution also contended that the absence of specific definitions in the Act, combined with the presumption and reverse burden of proof, necessitates a strict interpretation of the POCSO Act. They  invoked the concept of ‘ejusdem generic to support their argument

JUDICIAL PRECEDENT:

The case of Libnus vs. State of Maharashtra[1] involves the incorrect interpretation and application of the Protection of Children from Sexual Offences (POCSO) Act. In this case, a  mother returned home from work and found a man in her house holding her 5-year-old  daughter’s hand. The man fled when he saw the mother. The child reported that the man had asked her to sleep with him, unzipped his pants, and exposed his genitals.

The lower court convicted the accused under Section 8, Section 10, and Section 11 of the  POCSO Act, as well as under Section 354A of the Indian Penal Code (IPC). However, on appeal to the High Court, the main issue was the interpretation of the relevant provisions.

RATIONALE:

The High Court held that the act of opening one’s pants zipper and holding the child’s hand did not fall under the scope of the POCSO Act. As a result, the accused was acquitted under the POCSO Act. However, he was convicted under Section 354A of the IPC for sexual harassment.

RELEVANT PROVISIONS OF THE POCSO ACT:

  • Section 7 defines “sexual assault” and includes acts with sexual intent that involve physical contact without penetration.
  • Section 8 provides punishment for sexual assault, which can range from three to five years of imprisonment.
  • Section 9 defines “aggravated sexual assault,” which includes sexual assault on a  child below twelve years.
  • Section 10 provides punishment for aggravated sexual assault, ranging from five to seven years of imprisonment.
  • Section 11 pertains to “sexual harassment” and outlines various actions that constitute sexual harassment.
  • Section 12 provides punishment for sexual harassment, which can extend to three years of imprisonment.

DEFECTS OF THE LAW:

The case highlights the need for a precise interpretation of the POCSO Act, particularly  Section 7, which defines “sexual assault.” The court’s decision reflects the importance of understanding the legislative intent behind such statutes.[2] The court emphasized that the language of the law should be clear and that any interpretation requiring the addition,  substitution, or rejection of words should be avoided unless exceptional circumstances, such as a necessity, warrant such an interpretation. The court’s decision also underscores the significance of considering both what has been said in the statute and what has not been said when interpreting the law.

In summary, the case of Libnus vs. State of Maharashtra[3]underscores the need for a careful and context-specific interpretation of laws related to sexual offenses against children, with a  focus on legislative intent and the language used in the statute.

INFERENCE:

The High Court made a significant error in the cases of accused Satish and accused Libnus by finding them guilty of minor offenses under Sections 342 and 354 of the  Indian Penal Code (IPC) while acquitting them of the more serious offense under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act. The High Court’s decision,  despite accepting the consistent testimonies of the victim and her mother, contained several misconceptions.

Firstly, the High Court wrongly held that pressing the breast of a 12-year-old child, even in the absence of specific details such as whether her clothing was removed or if hands were inserted inside her top, did not meet the definition of sexual assault under Section 8 of the  POCSO Act. It also erroneously concluded that there was no offense because there was no direct “skin-to-skin” contact with sexual intent. The High Court’s use of the principle of  ‘ejusdem generis’ was also flawed, as this principle should only be applied as an aid to interpreting a statute.

The correct interpretation of Section 7 of the POCSO Act involves two parts: the first exhaustively lists specific acts of sexual assault, while the second encompasses acts beyond those specific words. Therefore, anyone with sexual intent who touches the specified body parts of a child, or makes the child touch those parts, commits sexual assault. Similarly, any other act with sexual intent that involves physical contact without penetration also constitutes sexual assault under Section 7. The prosecution did not need to prove “skin-to-skin” contact to establish the charge of sexual assault under Section 7 of the Act.

In both cases, the prosecution had successfully proven not only the accused’s sexual intent but also the alleged acts, including breast-touching, attempted removal of clothing, and forceful action, all of which constitute sexual assault under Section 7 and are punishable under  Section 8 of the POCSO Act.

Therefore, the Supreme Court should set aside the High Court’s judgments and orders that acquitted the accused Satish and accused Libnus of offenses under Sections 8 and 10 of the  POCSO Act, and the original judgments and orders of conviction and sentencing issued by the Special Court should be reinstated.

[1] Libnus S/O Fransis Kujur vs State Of Maharashtra Thr. 2021 SCC OnLine Bom 66.

[2] Sahana Devarajan, India Supreme Court suspends Bombay High Court judgment on definition of sexual assault, Jurist (Sept 12, 2023, 7:58 PM), https://www.jurist.org/news/2021/01/india-supreme-court-suspends-bombay-high-court-judgment-on-definition-of-sexual-assault/#:~:text=January%2028%2C%202021%2009%3A27,Sexual%20Offences%20Act%20(POSCO).

[3] Libnus S/O Fransis Kujur vs State Of Maharashtra Thr. 2021 SCC OnLine Bom 66.