Anushka MehtaCo-Founder, Rightantra I am sure most of you reading this article would remember the vastly criticised, astonishing judgement passed by the Nagpur Bench of the Bombay High Court, earlier this year. If not, the mere mention of the phrase ‘skin to skin contact’ should be sufficient to jolt your memory. This phrase was used by Justice Pushpa Ganediwala in her judgement that acquitted a man accused of inappropriately touching the breasts of a 12-year-old girl, under section 8 of the Protection of Children from Sexual Offences (POCSO Act) and instead convicted him only under the lesser charge of section 342 and 354 of the Indian Penal Code (IPC). On November 18, 2021, the Supreme Court overruled the erroneous judgement of the Bombay High Court by convicting the accused under section 8 of the POCSO Act, on appeal by the Attorney General of India along with National Commission for Women. Additionally, the judgement of the Supreme Court also addresses an appeal by the State of Maharashtra against the acquittal of a man accused of undressing a minor girl and exposing his penis, which was held by the Bombay High Court as not amounting to aggravated sexual assault, under section 10 of the POCSO Act.
Factual History The facts in the case of the girl, who was touched over the breasts by the accused named Satish, were such that the girl had left her house to buy guavas, when the accused, being a local known to the girl, took her to his house promising her guavas. The mother of the girl set out looking for her after a considerable time had passed and she was informed by a witness about the girl’s whereabouts. On reaching the home of the accused, the mother heard shouting from inside and on investigation found the girl crying locked in a room. The girl informed the mother that the accused pressed her breasts and tried to remove her clothing. When the girl resisted and raised a noise the accused locked her into a room. The mother, thereafter, lodged a complaint at the local police station. The factual matrix in the case of the 5-year-old who was disrobed by the accused named Libnus, was similar in that both the accused were locals residing close to the victims. The accused visited the house of the girl, on the pretext of requiring to meet with her father, who along with her mother, was not present at the house. The mother returned home before the accused left and saw her daughter straightening her clothes, and also that the accused’s pants were unzipped. The girl recounted that when she told the accused of her father’s absence, he held her hands and tried to disrobe her. He further pushed her onto a cot and showed his penis to her. Pursuant to this, the mother filed a complaint at the local police station. Erroneous Judgements Although both judgements were recorded independently, a commonality between them is the overly liberal interpretation given to provisions of a special act such as the POCSO. The interpretation of section 7 of the POCSO, which pertains to sexual assault, has been made in a narrow and pedantic manner. The Bombay High Court when acquitting the accused, Satish, under section 8 of the POCSO reasoned that evidence did not show that the clothes of the victim were removed or that the accused touched her under her clothing. Therefore, the conditions prescribed under section 7 of touching the breast with sexual intent involving physical contact, were not satisfied since there was no ‘skin-to-skin contact’ established. The Bombay High Court, thus, went on to convict the accused only under sections 342 and 354 of the IPC, for assault of a woman with the intent to outrage her modesty. The reason behind the outcry against this decision was not only due to the incorrect precedent set by such literal interpretation but also on account of the minimal punishment provided under the IPC as compared to the POCSO Act. In the appeal involving the accused Libnus, the Bombay High Court set aside the charges against the accused under sections 8 and 10 of the POCSO, which provide punishment for sexual assault and aggravated sexual assault. The justification given by the Bombay High Court was that the definition of sexual assault under section 7 begins with: “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….”. By applying the rule of “ejusdem generis”, it was held that the words ‘any other act’ encompasses within themselves, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition. Therefore, acts such as holding the hands of the victim or unzipping one’s pants could not amount to sexual assault ot aggravated sexual assault. Supreme Court’s Judgement: Righting the wrongs The judgement delivered by Justice Bela Trivedi of the Supreme Court upholds that restricting 'touch' or 'physical contact' under Section 7 of POCSO Act to ‘skin-to-skin contact’ is absurd and would destroy the intent of the Act, which is enacted to protect children against offences which were not adequately penalised hitherto. It was further held that if such interpretation was permissible then even physical groping while wearing gloves, condoms, a sheet or any cloth would not amount to sexual assault. The judgement expressed concern against the trivialization and lax interpretation by the impugned judgements, which creates ambiguity rather than ascertaining the intent of the legislature. It is trite saying that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse. The words ‘touch’ and ‘physical contact’ not being defined within the POCSO Act itself, recourse was made to the dictionary meaning of these words, to conclude that the word “Touch” has been used specifically with regard to the sexual parts of the body, whereas the word “physical contact” has been used for any other act. Therefore, the act of touching the sexual part of 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. Thus, the main ingredient is sexual intent, not skin to skin contact. The judgement also relied upon decisions of foreign courts, such as Regina v. H (2005) 1 WLR 2005 and State of Iowa V. Walter James Phipps 442 N.W.2d.611 to reach the same conclusion. With regard to reliance of the Bombay High Court upon the premise of the principle of “ejusdem generis”, it was noted that the principle of ejusdem generis should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. Justice S Ravindra Bhat in his separate but concurring judgement, further went on to lay down circumstances which aid in determining the sexual intent of the accused, which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness and also if there is a legitimate non-sexual purpose for the contact. It is also relevant to see the conduct of the offender before and after the contact. It was also held that sexual intent is not defined but fact dependent. Lastly, one cannot deny that credit must be given to the proactive nature of the Attorney General as well as the National Commission for Women in filing appeals to quash the gravely erroneous decisions of the Bombay High Court, which would have had far reaching ramifications for women and children. Link to the entire judgement of the Supreme Court - https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf.
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