SC sets Aside Bombay HC judgement on POCSO’s Skin to Skin contact

"The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin to skin contact with the child- Supreme Court opined.


The Supreme Court on Thursday set aside a controversial Bombay High Court judgment which had held that pressing the breast of a child without removing her clothes will not amount to ‘sexual assault’ under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act since there was no “skin-to-skin” contact (Attorney General for India v. Satish)

A Bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi held that the ingredient of the offence of ‘sexual assault’ under POCSO is sexual intent and skin to skin contact in such incidents is not relevant.

The law has to be given an interpretation that gives effect to the intention of legislature instead of defeating it, the Court underscored.

“The most important ingredient of for constituting the offence of sexual assault is sexual intent and not skin to skin contact with the child. Construction of a rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given,” the Court said.

Mandating “skin to skin” contact would amount to a narrow and absurd interpretation, the Court added.

Hence, the Court ruled that any act of touching any sexual part of a child with sexual intent cannot be taken away from the purview of Section 7 of the POCSO Act.

Justice Ravindra Bhat delivered a separate concurring judgment.

The Bombay High Court had on January 19 ruled that pressing the breast of a 12-year-old child without removing her clothes will only fall within the definition of outraging the modesty of a woman under Section 354 of the Indian Penal Code (IPC) and not sexual assault under the POCSO.

It had, therefore, acquitted a man for an offence under Section 7 of POCSO on the ground that the victim was clothed and there was no “skin-to-skin” contact.

“The act of pressing of breast of the child aged 12 years, in the absence of any specific detail 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,” the High Court had ruled.

Justice Pushpa V Ganediwala of the High Court, had therefore, acquitted the accused under Section 8 (punishment for sexual assault) of the POCSO Act. The Court, however, maintained his conviction under Sections 354 (assault of criminal force) and 342 (wrongful confinement) of the IPC, considering the act which he committed amounted to use of criminal force to outrage her modesty.

Whereas the punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3-5 years, the punishment under Section 354 of IPC is imprisonment of 1-5 years.

The apex court had stayed the controversial judgment on January 27 this year, after Attorney General KK Venugopal mentioned the matter suo motu and termed it as a “very disturbing conclusion.”

Subsequently, appeals challenging the judgment were filed by the State of Maharashtra, and the National Commission for Women (NCW).

The top court had reserved its judgment in the matter on September 30.
In its judgment today, the Court said that when the legislature has expressed clear intention with regard to a law, courts cannot create ambiguity with respect to it.

“Purpose of the law cannot be to allow the offender to escape the meshes of the law,”the Court said.

The Court while setting aside the High Court verdict ordered that the accused has to undergo rigorous imprisonment for 3 years and simple imprisonment for one month.

Source: bar&bench


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April 2024


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