Skin-to-skin: Definition of sexual assault in POCSO must be looked from victim's perspective, says SC

Supreme Court of India. File Pic

The provision defining the offence of sexual assault against children under the POCSO Act must be looked at from the "victim's perspective" and if the "sexual intent" is present then the offence is made out even without "skin-to-skin contact", the Supreme Court Thursday orally observed.

A bench headed by Justice U U Lalit stressed on the intent to commit the sexual offence and said the results would be "disastrous" if the term "physical contact" in the provision is interpreted in a way where the skin-to-skin contact becomes necessary for constituting the offence.

The top court reserved its verdict on two appeals filed against the Bombay High Court verdict, which had come under intense scrutiny, and had held that no offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act is made out if there is no direct ¿skin-to-skin contact between accused and the victim.

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The bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, discussed threadbare the definition of section 7 of the POCSO Act which deals with the offence of sexual assault against the children.

The provision says: "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."

"So, therefore, the primary thing is that if the sexual intent is proved then everything will fall in place," the bench orally observed while expressing its reservation on the interpretation made by the high court.

Senior advocate Siddhath Luthra, appearing for the convict in the case as an amicus curiae, referred to the contents of the provision and said that there were issues with the first part of the provision which said if an accused, 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, then the offence of sexual assault is made out."

However, the second part of the provision said that for constituting the offence of sexual assault, an accused has to commit an act "which involves physical contact without penetration" and here the "skin-to-skin" interpretation creeps in.

Luthra said the second part "requires sensitive interpretation".

One must rely on different situations to see whether a given interpretation logically holds and when an offence has been clearly laid down then if there was any need to stretch one's reasoning and rely on other provisions, the bench said.

"One must look at things from the victim's perspective. If a pen is used to poke a person, there is no skin-to-skin touch and according to arguments advanced there is no sexual assault. But there is an invasion of privacy and violation of modesty of the child," it said.

"If we accept the submission (on physical contact without cloth), what kind of results will we get. According to us, the results will be disastrous," it observed.

Luthra said the legislature consciously used the term 'physical act' in the second part of the provision.

"So, do we understand your submission that the first part skin to skin need not be there? According to you, in the second part skin to skin contact is essential," the bench asked.

Another amicus curiae Siddhart Dave and others argued in the case and the counsel for Maharashtra adopted the submissions of Attorney General K K Venugopal who had vehemently argued for the setting aside of the verdict by the Nagpur bench of the Bombay High Court.

While reserving the verdict, the bench asked parties to file their written submissions within three days.

Venugopal had earlier told the apex court that the controversial verdict of the Bombay High Court would set a "dangerous and outrageous precedent" and needed to be reversed.

The top court, which was hearing separate appeals of Attorney General and the National Commission for Women (NCW), had on January 27 stayed the order which had acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act saying "groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault."

Two judgments were passed by Justice Pushpa Ganediwala of Bombay High Court (Nagpur Bench).

Earlier, while staying the judgements, the top court had also issued notice to the Maharashtra government and permitted the Attorney General to file an appeal against the verdict.

The verdict had said groping a minor's breast without "skin-to-skin contact" cannot be termed as sexual assault as defined under the POCSO Act.

It had said since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman's modesty under IPC section 354.

The high court had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.

The verdict had held that mere groping will not fall under the definition of sexual assault. As per the prosecution and the minor victim's testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat.

Once there, he gripped her breast and attempted to remove her clothes, the high court had recorded in her verdict.

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