The article critically analyses the Bombay High Court, Nagpur Bench, judgment where the Court held that skin-to-skin contact is required to establish the offence of sexual assault.
Introduction – Material Facts
The facts of the present case are that the mother of the prosecutrix, lodged an FIR in the police station stating that the appellant lured the prosecutrix, aged 12 years, to his house offering her guava and then pressed her breast and made an attempt to remove her salwar. The prosecutrix resisted and shouted during the said act. As the prosecutrix did not come back for a long time, the mother enquired about her and one of the neighbours told the mother that the appellant, who lived in the same locality, took the prosecutrix to his house. When the mother asked for the whereabouts of the prosecutrix from the appellant, he denied her presence in his house. The mother then checked the appellant’s house and found the prosecutrix crying in the room which was latched from outside. Then the prosecutrix narrated the entire incident to her mother. Following this, the mother went to the police station along with the prosecutrix and registered a First Information Report against the appellant.
Bombay High Court on Sexual Assault under POCSO
The Bombay High Court, Nagpur Bench, after hearing both the sides held that the said offence of “pressing breasts” does not fall under Section 7 of Protection of Children from Sexual Offences Act, 2012 [hereinafter, “POCSO Act”] and therefore, the appellant shall not be punished under the same. However, the appellant was found guilty under Section 354 and Section 342 of Indian Penal Code, 1860 [hereinafter, “IPC”].
Analysis – Sexual Assault under POCSO & Outraging Modesty of a Woman under IPC
In this single-bench judgment, the Court has not considered the act of “pressing breasts” as sexual assault. Sexual assault has been defined under Section 7 of the POCSO Act. It is stated as –
“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.”
According to the Court, the emphasis was placed on the term ‘physical contact’ and stated that there must be a skin-to-skin touch for it to constitute an offence under this Section. The Court also stated that the act of pressing the breasts when there is no specific detail available as to the top was removed or not or whether the appellant put his hands inside the top to touch the breasts of the prosecutrix, the same would not fall under the definition of ‘sexual assault’. The Court has, however, found the appellant guilty under Section 354 of IPC.
Section 354 of IPC reads as –
Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
So, as per this Section, the Court found that the act of pressing the breasts and attempt to remove the salwar is outraging the modesty of a woman and would, therefore, attract the penalization of Section 354 of IPC and convicted the accused for 1 year under the said Section.
Since the Court has found the appellant guilty under Section 354 of IPC, this means that the intention of the appellant has been established. Hence, it was not an accidental touch or an unintentional touch.
In the present case, the Court has failed to recognize that Section 7 of the POCSO Act and Section 354 of IPC are not similar to each other on two grounds. Firstly, the POCSO Act is a gender-neutral statute to safeguard children from sexual abuse while Section 354 of IPC is a women-oriented provision that only talks about ‘women’s modesty’. Secondly, the word ‘intent’, as used in Section 354 of IPC, is not attributable to any sexual desire or gratification whereas Section 7 of POCSO Act explicitly talks about sexual intent.
Section 354 of IPC will be applied even when there is no intention to satisfy any sexual desire on the part of the accused. For instance, in the case of Machindra Chate, the act of pushing the woman away when there was no sexual intention was considered as an offence under Section 354 of IPC.
In the instant case, the pressing of breasts by the appellant and attempt to remove the salwar of the prosecutrix clearly shows the sexual intent of the appellant. Taking into consideration the views of the Bombay High Court, if the same act was committed with a boy then no conviction would have been possible since Section 354 of IPC is only applicable for women. This is a major flaw in the judgment of the High Court.
Further, the Court’s interpretation of the word ‘physical contact’ as skin-to-skin contact is erroneous because, if, supposedly, a person tries to touch the naked body of the victim by wearing gloves or using a cloth, then also no conviction would be possible under Section 7 of POCSO Act, since there is no skin-to-skin contact.
In the present case, the Court has applied the provisions of POCSO Act in a very strict sense and has approached this case from the accused’s point of view. However, the POCSO Act is very benevolent and beneficiary legislation, and its main objective is to provide maximum benefit to the children who are the victim of sexual abuse. The Court, in the past cases, has liberally used the POCSO Act.
In the case of State of Karnataka v. Noor Ahammed, the victim who was a minor girl of 14 years of age was returning to her village after attending the classes in her school, the accused, with sexual intention, touched the right breast of the victim from his right hand and molested her by squeezing her right breast. The Court convicted the accused under Section 354-A of IPC and Section 8 of the POCSO Act.
The Court also held, “[t]he said section, [section 7], mentions the intention regarding committing the sexual assault. It is an act in furtherance of his desire for sex for the sake of satisfying the lust, touches the private parts like vagina, penis, anus, breast of other persons, if the sexual intention is there it completes the offence.”
In this case, the Court did not look into whether the accused put his hands inside the top of the victim or whether the victim was disrobed at the time or not, it recognized that if there is the presence of sexual intention then the accused is liable under Section 7 of POCSO Act.
In another case, Ravi v. State [2018 SCC OnLine Del 11182], the appellant caught hold of the hand of the with sexual intent which involved physical contact. The said act constituted an offence under Section 7 of the POCSO Act and awarded the punishment of three years to the accused. In this case, the mere holding of hands attracted the penalty under Section 7 of POCSO Act and a rigorous punishment of three years, however, groping a child of merely 12 years, pressing her breasts, and attempting to remove her salwar would only attract penalization under Section 354 of IPC with simple imprisonment of a year. This is a major flaw in the judgment of the Bombay High Court and is completely unfair and unjust on the part of the victim.
To conclude, in the current judgment, the interpretation of Bombay High Court is highly erroneous and defies the entire purpose of the POCSO Act. The judgment sets up a dangerous precedent and creates a pathway for an accused person to get off unscathed from the hands of the criminal justice system if he establishes that there is no skin-to-skin contact between him and the victim. Further, the similarity between Section 7 of POCSO Act and Section 354 of IPC taken up by the Court is fallacious since Section 354 of IPC is not a gender-neutral provision and no conviction could happen if the victim was a male child.
The National Commission for Women has now moved the Supreme Court to challenge this judgment. Also, the National Commission for Protection of Child Rights has written a letter to the Government of Maharashtra asking them to document an immediate appeal against this ruling. The Letter also stated that “[t]he remark ‘skin-to-skin’ with sexual intention without penetration also needs to be reviewed and the State should take note of this as it seems to be derogatory to the Minor Victim”.
The Chief Justice of India, S.A. Bobde, iterated that the judgment is a ‘disturbing conclusion’ and contended that it sets up a ‘dangerous precedent’ and therefore, the Supreme Court has now stayed the order passed by the Bombay High Court.
Further, since there is no mention of the definition of ‘physical contact’ in the legislation, the problem has arisen. The Court’s interpretation of the term ‘physical contact’ means that there should be a skin-to-skin contact which is extremely fallacious and shall be done away with as the same issue can come up before the Courts in the future and therefore, a proper definition of the term ‘physical contact’ should be provided by the legislature.
About the Authors, Mahak and Shivangi [2019-24] are pursuing B.B.A.LL.B (Hons) and B.A.LL.B (Hons), respectively, at National Law University, Jodhpur.