‘Sexual intent’, not ‘skin-to-skin’ contact, key in POCSO assault case: SC

admin November 26, 2021
Updated 2021/11/26 at 10:13 AM

The Supreme Court said on Thursday that “sexual intent,” not “skin-to-skin” contact with the child, is the most important ingredient for constituting a sexual assault under Section 7 of the Protection of Children from Sexual Offenses (POCSO) Act, the Supreme Court said on Thursday, while quashing two judgments of the Bombay High Court’s Nagpur bench.

The two HC decisions caused a stir by determining that “no direct physical contact, i.e., skin to skin” between the accused and the victim does not constitute a sexual assault under Section 7 of the POCSO.

The Supreme Court bench of Justices U U Lalit, S Ravindra Bhat, and Bela M Trivedi went over the dictionary definitions of the words “touch” and “physical contact” on Thursday, concluding that “touch” has been used specifically with regard to sexual parts of the body, whereas “physical contact” has been used for any act. “Touching the sexual portion of the body or any other act involving physical contact, if done with “sexual intent,” would amount to “sexual assault” within the meaning of Section 7 of the POCSO Act,” the court ruled.

The argument that the word “physical touch” used in Section 7 must be understood as “skin-to-skin” contact “cannot be accepted,” Justice Trivedi wrote for Justice Lalit and herself.

The judgement said that “constructive construction of a rule should give effect to the rule rather than destroy it,” and that “any restrictive and pedantic reading of the provision that would contradict the provision’s object cannot be recognised.”

“Where the Legislature’s objective cannot be given effect, courts will embrace the bolder interpretation for the sake of achieving an effective outcome,” the bench stated. Restricting the meaning of the terms “touch” or “physical contact” to “skin-to-skin contact” would not only be a limited and pedantic reading of Section 7’s provision… but would also result in an illogical interpretation.”

The court said that the Legislature could not have meant or anticipated “skin-to-skin contact” as a basis for a “sexual assault” offence. “The very object of enacting the POCSO Act is to protect children from sexual abuse, and if such a narrow interpretation is accepted, it will result in a very detrimental situation, frustrating the very object of the Act, inasmuch as touching sexual or non-sexual parts of a child’s body with gloves, condoms, sheets, or cloth, even if done with sexual intent, would not amount to a sexual assault under Section 7 of the POCSO Act,” the bench said. “The’sexual intent,’ not the’skin to skin’ contact with the child, is the most significant factor for creating the crime of sexual assault under Section 7 of the Act.”

“The act of touching any sexual part of a child’s body with a sexual purpose, or any other act involving physical contact with sexual intent, cannot be trivialised or found inconsequential or peripheral so as to remove such conduct from the ambit of “sexual assault” under Section 7,” the judgement concluded.

“The fallacy… in the High Court’s reasoning is that it believes indirect contact is not protected by Section 7—or, in other words, that there is no “touch” at all,” Justice Bhat said in a separate concurring opinion. That clause applies to both direct and indirect contact, and it is intended to do so. “

“The sensors on the human body’s surface are extremely sensitive to the intricacies of a wide variety of tactile experiences,” he said. For example, the use of a spoon to eat food without touching it with the hand, for example, has no effect on the sensation of touch experienced by the lips and mouth. When a stick or other object is rubbed against a person’s skin, even if they are dressed, their sense of touch is acute enough to detect it. “

As a result, the logic in the High Court’s ruling trivialises — indeed legitimises — a whole spectrum of improper behaviour that undermines a child’s dignity and autonomy via unwelcome intrusions, Justice Bhat said.

The Attorney General of India, the National Commission for Women, the State of Maharashtra, and the accused in one case, and the State of Maharashtra in the other, appealed to the Supreme Court.

On February 5, 2020, a special court in Nagpur convicted and imprisoned accused Satish for violations of Sections 342, 354 and 363 of the IPC, as well as Section 8 of the POCSO.The HC acquitted him of the crime under Section 8 of the POCSO Act on appeal on January 19, 2021, finding that “there is no direct physical contact, i.e., skin to skin with sexual intent without penetration.”

The HC found him guilty of violating IPC Sections 342 and 354.

On October 5, 2020, a special court in Gadchiroli found and sentenced accused Libnus for crimes punishable under IPC Sections 448 and 354-A (1)(i), as well as POCSO Sections 8 and 10 read in conjunction with Sections 9(m) and 12.On appeal, the HC upheld his convictions under Sections 448 and 354-A(1)(i) of the IPC, as well as Section 12 of the POCSO Act, but overturned his convictions under Sections 8 and 10 of the POCSO Act.

“The actions of “holding the hands of the prosecutrix” or “opening the zip of the pant”… do not meet the definition of “sexual assault” in the view of this court,” the HC stated.

Source: The Indian Express

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