New Delhi: “Bizarre”, “not legally sound”, “absurd” — legal experts have lashed out at a judgment pronounced by the Nagpur Bench of Bombay High Court this month that interpreted sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012, to include only “skin-to-skin” contact with sexual intent.
In a judgment passed on 19 January, Justice Pushpa V. Ganediwala acquitted one Satish under Section 7 (sexual assault) of the POCSO Act, while ruling that the act of groping a child’s breast, without any skin-to-skin contact and sexual intent, is not sexual assault under the law.
“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’,” the court said.
Physical contact for sexual assault under Section 7 of the POCSO Act would mean “direct physical contact i.e. skin to skin”, the court added. “Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration,” it said.
The court pointed out that it wasn’t the prosecution case that Satish “removed her top and pressed her breast”.
It then opined that this would fall under Section 354 (assault of criminal force on a woman with intent to outrage her modesty) of the Indian Penal Code (IPC), and convicted Satish under this provision.
This led to his punishment being reduced from a three-year rigorous imprisonment — the minimum under Section 8 of the POCSO Act, which lays down punishment for offences listed under Section 7 — to a year’s rigorous imprisonment — the minimum under Section 354.
Speaking to ThePrint, many legal experts said the interpretation adopted by the court goes beyond the words used in the provisions of the POCSO Act, calling it “bizarre”, “ridiculous” and “legally unsound”. Such judgments, they added, send the wrong message to trial courts.
Meanwhile, the National Commission for Protection of Child Rights (NCPCR) has written to the Maharashtra government asking it to file an urgent appeal against the verdict.
In a letter to the Maharashtra Chief Secretary, NCPCR Chairperson Priyank Kanoongo said the words “skin-to-skin with sexual intention without penetration” in the judgment need to be “reviewed”, and asserted that “the state should take note of this as it seems to be derogatory to the minor victim”.
National Commission for Women Chairperson Rekha Sharma announced on Twitter Monday they will challenge the verdict.
Also Read: This is the reason why BHC argues groping a child is not sexual assault under POCSO
Kidnapped on the pretext of giving a guava
The case in which the judgment was issued dates back to December 2016. According to the complaint lodged by the mother of the girl who was then a 12-year-old, Satish took her to his house on the pretext of giving her a guava.
He then “pressed her breast and attempted to remove her salwar”. The girl’s mother reached the spot just then and rescued her, the complaint states, adding that she immediately got an FIR registered against Satish.
In February 2020, a trial court found him guilty under Sections 354, 363 (kidnapping) and 342 (wrongful confinement) of the IPC, and Section 8 (punishment for sexual assault) of the POCSO Act 2012. He was sentenced to three years’ rigorous imprisonment and a fine of Rs 500 was imposed on him. Satish then filed an appeal in the high court.
The high court considered the question “whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act”.
Section 354 versus POCSO provisions
Section 7 of the POCSO Act says a person commits sexual assault if he or she, “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”.
Section 354 of the IPC seeks to punish anybody who “assaults or uses criminal force to any woman, with the intention to outrage her modesty”.
The POCSO Act was especially introduced to deal with offences that target children, including sexual abuse and pornography. It widened the scope of reporting offences against children, which were not covered under the Indian Penal Code.
Under this law, aggravated penetrative sexual assault includes abuse by a person in position of trust or authority such as public servants, police, armed forces, management or staff of an educational or religious institution.
The Act also lays down the procedure for reporting of cases, and spells out punishment for failure to report a case or registering a false complaint.
It reverses the burden of proof as well — setting it at “guilty until proven innocent” rather than the general rule of “innocent until proven guilty”, placing the burden of proof on the accused. This makes the Act more stringent than general IPC provisions.
Section 8 of the POCSO Act provides for a punishment of three to five years’ imprisonment along with fine for sexual assault, while the penalty under Section 354 of the IPC ranges from one to five years of imprisonment along with fine. While POCSO is gender neutral, Section 354 applies only to women.
The Nagpur bench of the Bombay High Court laid emphasis on the difference in punishment for the two offences and observed: “Considering the stringent nature of punishment provided for the offence, in the opinion of this court, stricter proof and serious allegations are required.”
It then acquitted Satish from the more stringent POCSO provisions and convicted him under Section 354, instead.
Also Read: 65% death sentences by trial courts in 2020 involved sexual offences, study reveals
‘Quite bizarre, ridiculous’
Senior advocate Rebecca John called the verdict “quite bizarre”. While the language used in Section 7 is clear, she said, “the judge has interpreted physical contact as skin-to-skin, which is ridiculous”.
“This is something that is not the intent of the law, to ask the question whether pressing of the breast and attempting to remove salwar would fall within the definition of sexual assault. Pressing of the breast will, because the section says, ‘whoever touches’,” she added.
“If there was clear and unequivocal evidence that suggested that he did press her breast, whether from outside or whether ‘skin-to-skin’, the offence is complete,” she added.
John also expressed disappointment over the language used by the court. “When you use logic that is questionable and when you use language that is highly avoidable, then it has a ripple effect, because it actually gives a message of sorts to society and the subordinate courts, that this is the way you should appreciate evidence,” she said. “That, to me, is very problematic.”
Advocate Karuna Nundy called the verdict “deeply troubling”, because “we are saying that if adults come and grope children’s genitals and breasts through clothes, it’s not going to be sexual assault”.
“The facts in this case are not in dispute. The judge has accepted the fact that the accused lured her in with the promise of a guava, locked up the 12-year-old child in a room, pressed her breast, and tried to take her salwar off. None of this is under dispute,” she said.
“However, the judge said that because the sentence was too high, she felt that the crime should be interpreted in such a way that somehow the accused would then get a lower sentence,” Nundy added.
In doing so, she said, the judge “did violence to the statute and basically made a whole slew of crimes under POCSO legal”.
Nundy added that such judgments send out the “wrong message to police and criminals and trial court judgments and contribute to impunity”.
“Now, people who sexually assault little boys in this way could could go scot-free, as Section 354 of the IPC only applies to women,” she said.
The ‘skin-to-skin’ contact rule would also mean a rapist who rapes a child with a condom could argue that he never sexually assaulted the victim, she added.
Also Read: Young boys turn offenders ‘without realising consequences’: HC bats for awareness on POCSO
‘Not legally sound’
Supreme Court advocate and former judge Bharat Chugh said the judgment ignores the definition of sexual assault under Section 7 of the Act, which he described as “quite clear and unambiguous”.
The fact that the accused touched the child’s breast was indisputably proved, he added. “This being the case — the ingredients of Section 7 and 8 of the Act were clearly satisfied. The observations regarding a ‘skin-to-skin contact being necessary for the purpose of making out a case under Section 8’ do not appear to be legally sound,” he said.
The law, he added, does not have ‘skin-to-skin’ contact as a requirement for an act to qualify as sexual assault.
“Despite the Section being clear, the court has read into the Section something that the legislature did not lay down. The legislature, if it intended to confine the punitive scope of the Section to only ‘skin-to-skin contact’ cases, would have said so.”
Section 8 of POCSO Act having a higher punishment “cannot be a justification for reading or interpreting it incorrectly or reading-in a requirement that the legislature never intended”, he added.
Senior advocate Sanjay Parekh said the reasoning adopted by the court is “absurd”.
“Ultimately, when we talk of child abuse, there cannot be a more… wrong interpretation or absurd interpretation of the law,” he added.
“When an offence under POCSO is made out, then how does the question of giving a lesser punishment come into picture? If there is an offence which is clearly made out, then there is no question of bringing it under Section 354,” he said.
Also Read: Why even 1,023 new fast track courts for rape and POCSO cases won’t be enough
The judge made a serious error. A larger bench should overturn it and restore the larger quantum of punishment imposed by the lower court. Sometimes you got to wonder about the quality of the judges in the Indian judiciary.
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