Sexual intent of the offender, not skin-to-skin contact, forms assault: Supreme Court

Top court quashes Bombay High Court decision to acquit man charged with assault

November 18, 2021 12:44 pm | Updated 09:46 pm IST - NEW DELHI

Image used for representational purpose only.

Image used for representational purpose only.

The Supreme Court on Thursday quashed a Bombay High Court decision to acquit a man charged with assault under the Protection of Children from Sexual Offences Act (POCSO) solely on the grounds that he groped the child over her clothes without ‘skin-to-skin’ contact.

“The act of touching a sexual part of the body with sexual intent will not be trivialised and not excluded under Section 7 of the POCSO Act,” a Bench of Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi held.

Comment | POCSO doesn’t brook dilution

Section 7 mandates that “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”.

Justice Trivedi, who authored the judgment, observed that the “purpose of law is not to allow the offender to sneak out of the mesh of law”.

The court said limiting the ambit of “touch” to a narrow and pedantic” definition would lead to an “absurd interpretation”.

The Bench said the most important ingredient in Section 7 was the sexual intent of the offender and not skin-to-skin contact.

The conclusion that ‘sexual intent’ mentioned in the provision should be ex facie skin to skin would defeat the object of the provision. It would, rather than giving effect to the rule, destroy it.

Justice Trivedi, speaking for the Bench, said when legislature had clarified its intent, the court should not introduce ambiguity.

“The court should not be overzealous in searching for ambiguity when the words in the section are plain. Someone can wear a surgical glove and exploit a child and get away scot-free... This is an outrageous order,” Attorney-General K.K. Venugopal, who moved the top court in the constitutional capacity of his office, had argued during the hearing.

The court, while setting aside the High Court decision, confirmed the guilt of the offender in the case and sentenced him to three years of rigorous imprisonment subject to the period he has already undergone.

Mr. Venugopal had argued that the High Court order would set a “very dangerous precedent” and cripple the intention of the POCSO Act to punish sexual offenders.

He added the High Court order had a deleterious effect when the number of POCSO cases had reached 43,000 in a year.

On January 19, a Single Judge of the Bombay High Court’s Nagpur Bench created a furore by acquitting a man under the POCSO Act and holding that an act against a minor would amount to groping or sexual assault only if there was “skin-to-skin” contact.

The High Court had concluded that mere touching or pressing of a clothed body of a child did not amount to sexual assault.

“The accused was sentenced to the minimum three years’ imprisonment under Section 8 of the POCSO Act. That was set aside by the HC and his sentence was reduced to one year under Section 354 (assault of a women to outrage her modesty) of the Indian Penal Code... This is very disturbing,” Mr. Venugopal had submitted in the top court shortly after he mentioned the case.

The National Commission for Protection of Child Rights had earlier asked the Maharashtra government to urgently appeal the High Court judgment.

Several organisations, including the Youth Bar Association of India, represented by advocate Manju Jetley, had also moved the top court against the High Court judgment.

The petitioners had said they were “badly perturbed” to note that the January 19 verdict contained several observations about the victim child’s modesty, which were both “derogatory and defamatory”. The child was even named in the judgment, the petition said.

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