Case BriefsSupreme Court

Supreme Court: In an important ruling on POCSO Act, the 3-judge bench of UU Lalit, Bela Trivedi* and S. Ravindra Bhat**, JJ has set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’.


Case Trajectory


  • In the case at hand, the accused had taken the 12-year-old victim to his house on the pretext of giving her guava, tried to remove her salwar and pressed her breast. He then pressed her mouth when she started shouting.
  • On 05.02.2020, the Special Court convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
  • On 19.01.2021, Bombay High Court’s Nagpur Bench acquitted the accused for the offence under Section 8 of the POCSO Act and convicted him for the offence under Sections 342 and 354 of the IPC, sentencing him to undergo rigorous imprisonment for a period of one year and fine of Rs. 500/- for offence under Section 354 and six months imprisonment and fine of Rs. 500/- for the offence under Section 342 of IPC.
  • Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the 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 said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion had come from a woman judge.
  • This prompted Attorney General for India K. K. Venugopal to approach the Supreme Court wherein he brought to the Court’s notice that the said judgment was likely to set “a dangerous precedent”.
  • On 01.2021, the 3-judge bench of former CJ SA Bobde and AS Bopanna and V. Ramasubramanian, JJ had then stayed the said judgment

Justice Bela Trivedi, for herself and Justice Lalit


“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

-Justice Bela Trivedi


Interpretation of Section 7 of the POCSO Act

“The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7.”

Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “Skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature.

“The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act.”

Further, the first part of Section exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act.

Why High Court’s “skin to skin” order was erroneous?

The High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO 30 Act. The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC.

The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.

The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. The prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.

The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act.

“Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act.”


Justice S. Ravindra Bhat’s concurring opinion


“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat


Not speaking for the sake of speaking, and thereby adding little value to Justice Trivedi’s analysis, Justice Bhat wrote a concurrent opinion, analysing the true import of Section 7 of the POCSO Act.

  1. Touching by a person – with sexual intent – of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender).
  2. Any other act with sexual intent which involves physical contact without penetration.

“Contact”, which is used in the second limb, has a wider connotation; encompasses – but is not always limited to – ‘touch’. While it is not immediately apparent why the term ‘physical contact’ has been used in the second limb, its use in conjunction with “any other act” (controlled by the overarching expression “with sexual intent”), indicates that ‘physical contact’ means something which is of wider import than ‘touching’. Viewed so, physical contact without penetration, may not necessarily involve touch. The “other act” involving “physical contact” may involve: direct physical contact by the offender, with any other body part (not mentioned in the first limb) of the victim; other acts, such as use of an object by the offender, engaging physical contact with the victim; or in the given circumstances of the case, even no contact by the offender (the expression “any other act” is sufficiently wide to connote, for instance, the victim being coerced to touch oneself).

“Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression “sexual intent” mean that every touch of those four body parts is prima facie suspect.”

The idea of ‘contact’ by a person with another through their clothing would hence, imply a physical contact. This is because of a combined operation of Section 2(2) of POCSO and Section 349 of IPC. Crucially, neither Section 7 nor any other provision of POCSO even remotely suggests that ‘direct’ physical contact unimpeded by clothing is essential for an offence to be committed.

The fallacy in the High Court’s reasoning is that it assumes that indirect touch is not covered by Section 7- or in other words is no “touch” at all. That provision covers and is meant to cover both direct and indirect touch.

“The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

[Attorney General for India v. Satish, 2021 SCC OnLine SC 1076, decided on 18.11.2021]


Counsels:

K.K. Venugopal, Attorney General for India,

Senior Advocate Siddharth Luthra, appearing on behalf of the accused through Supreme Court Legal Services Committee,

Amicus curiae: Senior Advocate Siddhartha Dave


Judgment by*Justice Bela Trivedi and **Justice S. Ravindra Bhat

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., altered the conviction of the appellant who was accused of sexually assaulting a minor child by partly quashing his conviction for the offence of sexual assault and aggravated sexual assault punishable under Sections 8 and 10 of POCSO Act, respectively.

The instant appeal challenged the judgment wherein the appellant/accused was convicted for the offence under Sections 354-A(1)(i) and 448 of the Penal Code, 1860 and Sections 8, 10 and 12 read with 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

Informant i.e. the mother of the prosecutrix had gone to her duty and on returning back home she saw the presence of appellant/accused in her house molesting her minor daughter who was aged about 5 years.

Further, the informant stated that she saw that the accused was holding the hands of her elder daughter. Informant’s daughter had informed that the accused removed his penis from the pant and asked her to come to the bed for sleeping.

Analysis and Decision

Bench noted that the appellant/accused was convicted by the trial court for the commission of offence of ‘aggravated sexual assault’, punishable under Section 10 of POCSO Act. However, to decide whether the alleged act of appellant/accused would fit into the definition of ‘aggravated sexual assault’, Court looked into the definition of ‘sexual assault’, according to which the offence involved the following ingredients:

(i) Act must have been committed with sexual intention.

(ii) Act involves touching 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.

 Further, the Court added that the acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as had been allegedly witnessed by PW-1, which in the opinion of this Court did not fit in the definition of ‘sexual assault’.

Considering the nature of the offence and the sentence prescribed, Court opined that the aforesaid acts were not sufficient for fixing the criminal liability on the appellant/accused of the alleged offence of ‘aggravated sexual assault’.

“At the most, the minor offence punishable under Section 354-A(1)(i) of the IPC r/w Section 12 of the POCSO Act is proved against the appellant.”

Another point noted by the Bench was that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient for the offence.

The definition starts with the words – “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……’ The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that.

Bench expressed that the prosecution could establish that the appellant/accused entered into the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined under Section 11 of the POCSO Act.

Hence, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was maintained. The criminal appeal was partly allowed and the conviction of the appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO Act, was quashed and set aside.[Libnus v. State of Maharashtra, 2021 SCC OnLine Bom 66, decided on 15-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed that the act of pressing of the 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’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]


ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Case BriefsHigh Courts

UPDATE: This Judgment of the Bombay High Court has now been reversed by a 3-Judge Bench of the Supreme Court of India after the matter was mentioned by the Attorney General for India and appeals were filed by the State of Maharashtra and the National Commission for Women.


Bombay High Court: Pushpa V. Ganediwala, J., expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

Present appeal was filed against the Order passed by the Extra Joint Additional Sessions Judge, Nagpur by which the appellant was convicted for the offence punishable under Sections 354, 363 and 342 of the Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

In the instant matter, it was noted that the prosecutrix’s age was 12 years. Prosecutrix went to bring guava and did not come back for a long time. Informant i.e. the mother (PW1) of appellant started searching for her, her neighbour told her that the appellant who was staying in the vicinity of their house, took her daughter to his house and showed her the house of the appellant.

PW1 went called out the prosecutrix’s name. Later, she saw the appellant coming down from the first floor. She asked the appellant about the whereabouts of her daughter. He denied the presence of the prosecutrix in his house. Further, the PW-1 searched for her daughter on the ground floor and then she went up to the first floor. The room was bolted from outside. She opened it and found her daughter.

Informant took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside.

Question for Consideration

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?

Appellant/accused was convicted for the offence of ‘sexual assault’ and added that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.

Analysis and Decision

Bench expressed that the act of pressing of the 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 above would certainly fall within the definition of the offence under Section 354 of the Penal Code, 1860.

“The act of pressing breast can be a criminal force to woman/girl with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.”

Further, the Court added that in the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fits into the definition of the offence as defined in Section 354 of IPC.

Court also noted that the prosecution’s case was not that the appellant had removed her top and pressed her breast. As such, there was no direct physical contact i.e. skin to skin with sexual intent without penetration.

Bench while concluding, held that the appellant shall be acquitted under Section 8 of the POCSO Act and convicted under minor offence under Section 354 of IPC.

In light of the above, criminal appeal was disposed of. [Satish v. State of Maharashtra, 2021 SCC OnLine Bom 72, decided on 19-01-2021]


Advocates for the parties:

Sk. Sabahat Ullah, Advocate for the appellant.

J. Khan, APP for the respondent.

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ. partly allowed the present appeal wherein a teacher sexually assaulted his minor students.

Appellant was tried, convicted and sentenced to imprisonment for offences of rape, aggravated penetrative sexual assault and for assault on the minor victim a schoolgirl with intent to outrage her modesty.

Judgment of conviction and sentence order have been challenged in the present appeal.

During the investigation, minor victim was examined and it was found that her breast nipples were swollen and her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Thus, Dr Rozeela Bhutia opined in her medical report that there was clinical evidence of sexual assault.

Minor victim identified the appellant as Kendrap Sir who used to teach them Mathematics and Hindi when she was in the 4th and 5th standards. She deposed that on two occasions, the appellant put his finger in her pisab garne (vagina). She deposed that on five occasions he put his hands on her chest/breasts in the classroom of the school. She also deposed about the appellant sexually abusing other schoolgirls.

Bench observed that,

It may be possible to get confused at such a tender age about which act was committed on which schoolgirl but near impossible for a schoolgirl to forget how she was sexually abused that too by her own teacher.

Section 375(b) IPC provides that insertion of a finger (a part of the body) into the vagina amounts to rape.

Court stated that it is inclined to uphold appellant’s conviction under Section 376(2)(f)(i) and (n) of the Penal Code, 1860.

Thus in view of the above terms, sentences under Sections 9(f), 9(l) and 9(m) of the POCSO Act are upheld.

In terms of Section 42 of the POCSO Act, the appellant is not liable to be punished for the offences under Sections 5(f), 5(l) and 5(m) of the POCSO Act. Accordingly, the appellant’s sentences under Section 5 of the POCSO Act are set aside.

Keeping in mind all the relevant considerations including the age of the appellant, Court held that sentence of 10 years and fine of Rs 50,000 for the above offences would be sufficient for the ends of justice. Appellant has been sentenced to 7 years of simple imprisonment and a fine of Rs 40,000 each for the offences under Sections 9(f), 9(l) and 9(m) of the POCSO Act.

Thus the appeal is partly allowed. [Kendrap Lepcha v. State of Sikkim, 2020 SCC OnLine Sikk 40 , decided on 01-06-2020]